THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


American  Casebook  Series 

WM.  R.  VANCE,  Yale  University  Law  School,  General  Editor 

Administrative  Law — By  Ernst  Freund,  Professor  of  Law,  Chicago  University. 
Admiralty — By  George    DeForest   Lord,  Lecturer  on  Admiralty,  Columbia  University, 

and  George  C.  Sprague,  Assistant  Professor  of  Law,  New  York  University. 
Agency,  2d   Ed. — By  Edwin  C.  Goddard,  Professor  of  Law,  University  of  Michigan. 
Bills  and  Notes,  2d  Ed. — By  Howard  L.  Smith,  Professor  of  Law,  University  of  Wis- 
consin, and  Underhill  Moore,  Professor  of  Law,  Columbia  University. 
Carriers — By  Frederick  Green,  Professor  of  Law,  University  of  Illinois. 
Conflict  of  Laws,  2d  Ed. — By  Ernest  G.  Lorenzen,  Professor  of  Law.  Yale  University. 
Constitutional  Law,  with  Supplement — By  James  Parker  Hall,  Dean  of  Chicago  Uni- 
versity Law  School. 
Contracts — By  Arthur  L.  Corbin,  Professor  of  Law,  Yale  University. 
Corporations,  2d   Ed. — By  Harry  S.  Richards,  Dean  of  the  University  of  "Wisconsin 

Law   School. 
Criminal   Law,  2d   Ed. — By  William  E.  Mikell,  Dean  of  the  University  of  Pennsyl- 
vania Law  School. 
Criminal  Procedure — By  William  E.  Mikell,  Dean  of  the  University  of  Pennsylvania 

Law  School. 
Damages — By  Floyd  R.  Mechem,  Professor  of  Law,  Chicago  University,  and  Barry 

Gilbert  of  the  Chicago  Bar. 
Equity — By  George  H.  Boke,  formerly  Professor  of  Law,  University  of  California. 
Equity — By  Walter  W.  Cook,  Professor  of  Law,  Yale  University,  3  volumes. 
Equity — By  Walter  W.  Cook,  Professor  of  Law,  Yale  University,  one  volume  edition. 
Evidence — By  Edward  W.  Hinton,  Professor  of  Law,  Chicago  University. 
Federal  Jurisdiction   and   Procedure — By  Harold  R.  Medina,  Associate  Professor  of 

Law,   Columbia  University. 
Insurance — By  William  R.  Vance,  Professor  of  Law,  Yale  University. 
International   Law — By  James  Brown  Scott,  Lecturer  on  International  Law  at  the 

School  of  Foreign  Service,  Georgetown  University. 
Legal    Ethics — By  George  P.   Costigan,   Jr.,   Professor  of  Law,   University  of  Cali- 
fornia. 
Mortgages — By  James  L.  Parks,  Professor  of  Law,  University  of  Missouri. 
Oil  and  Gas — By  Victor  H.  Kulp,  Professor  of  Law,  University  of  Oklahoma. 
Partnership — By  Eugene  A.   Gilmore,   Professor  of  Law,   University  of  Wisconsin, 
with  Supplement  by  William  E.  Britton,  Professor  of  Law,  University  of  Illinois. 
Persons — By  Albert  M.   Kales,   late   of  the   Chicago   Bar,   and   Chester   G.   Vernier. 

Professor  of  Law,   Stanford  University. 
Pleading     (Code) — By  Archibald  H.  Throckmorton,  Professor  of  Law,  Western  Re- 
serve University. 
Pleading   (Common  Law) — By  Clarke  B.  Whittier,  Professor  of  Law,  Stanford  Uni- 
versity, and  Edmund  M.  Morgan,  Professor  of  Law,  Harvard  University. 
Property  (Future  Interests) — By  Albert  M.  Kales,  late  of  the  Chicago  Bar. 
Property   (Personal    Property) — By  Harry  A.   Bigelow,   Professor  of   Law,   Chicago 

University. 
Property  (Rights  In  Land) — By  Harry  A.  Bigelow,  Professor  of  Law,  Chicago  Uni- 
versity. 
Property   (Titles  to   Real   Property) — By  Ralph  W.  Aigler,   Professor  of  Law,  Uni- 
versity of  Michigan. 
Property  (Wills,  Descent  and  Administration) — By  George  P.  Costigan,  Jr.,  Profes- 
sor of  Law,   University  of  California. 
Public  Utilities — By  Young  B.  Smith,  Professor  of  Law,   Columbia  University,  and 
Noel  T.   Dowling,   Professor  of  Law,   Columbia  University,   with  a  chapter  on 
Rates,  by  Robert  L.  Hale,  Lecturer  on  Legal  Economics,  Columbia  University. 
Quasi  Contracts — By  Edward  S.  Thurston,  Professor  of  Law,  Yale  University. 
Sales,  2d  Ed. — By  Frederic  C.  Woodward,  Professor  of  Law,  Chicago  University. 
Suretyship — By    Crawford   D.    Hening,    formerly   Professor   of   Law,    University   of 

Pennsylvania. 
Torts — By  Charles  M.  Hepburn,  Professpr  of  Law,  University  of  Indiana. 
Trade   Regulation — By  Herman  Oliphant,  Professor  of  Law,  Columbia  University. 
Trusts — By  Thaddeus  D.  Kenneson,  late  Professor  of  Law,   New  York  University. 
Trusts — By  George  P.  Costigan,  Jr.,  Professor  of  Law,  University  of  California. 

WEST  PUBLISHING  CO.  ST.  PAUL,  MINNESOTA 

C17401— 6b 


CASES 

IN 


QUASI   CONTRACT 


SELECTED  FROM  DECISIONS  OF 


ENGLISH  AND  AMERICAN  COURTS 


BY 

EDWARD  S.  THURSTON 


PBOFESSOE  OF  LAW 
IN  THE  UNIVERSITY  OF  MINNESOTA 


AMERICAN  CASEBOOK  SERIES 

WILLIAM  R.  VANCE 
GENERAL  EDITOR 


ST.    PAUL 

WEST  PUBLISHING  COMPANY 

1916 


T 


1 


COPYEIGHT,   1916 

BT 

WEST  PUBLISHING  COMPANY 

(Thubs.Quasi  Cont.) 


f     THE  AMERICAN  CASEBOOK  SERIES 

1^  • 

The;  first  of  the  American  Casebook  Series,  Mikell's  Cases  on  Crim- 
inal Law,  issued  in  December,  1908,  contained  in  its  preface  an  able 
argument  by  Mr.  James  Brown  Scott,  the  General  Editor  of  the  Se- 
ries, in  favor  of  the  case  method  of  law  teaching.  Until  1915  this 
preface  appeared  in  each  of  the  volumes  published  in  the  series. 
But  the  teachers  of  law  have  moved  onward,  and  the  argument 
that  was  necessary  in  1908  has  now  become  needless.  That  such 
is  the  case  becomes  strikingly  manifest  to  one  examining  three  im- 
portant documents  that  fittingly  mark  the  progress  of  legal  education 
■  in' America.  In  1893  the  United  States  Bureau  of  Education  pub- 
lished a  report  on  Legal  Education  prepared  by  the  American  Bar  As- 
sociation's Committee  on  Legal  Education,  and  manifestly  the  work 
of  that  Committee's  accomplished  chairman,  William  G.  Hammond, 
in  which  the  three  methods  of  teaching  law  then  in  vogue — that  is,  by 
lectures,  by  text-book,  and  by  selected  cases — were  described  and  com- 
mented upon,  but  without  indication  of  preference.  The  next  report 
of  the  Bureau  of  Education  dealing  with  legal  education,  published 
in  1914,  contains  these  unequivocal  statements: 

"To-day  the  case  method  forms  the  principal,  if  not  the  exclusive, 
method  of  teaching  in  nearly  all  of  the  stronger  law  schools  of  the 
country.  Lectures  on  special  subjects  are  of  course  still  delivered  in 
all  law  schools,  and  this  doubtless  always  will  be  the  case.  But  for 
staple  instruction  in  the  important  branches  of  common  law  the  case 
has  proved  itself  as  the  best  available  material  for  use  practically  ev- 
f  erywhere.  *  *  *  The  case  method  is  to-day  the  principal  method 
of  instruction  in  the  great  majority  of  the  schools  of  this  country." 

But  the  most  striking  evidence  of  the  present  stage  of  development 
of  legal  instruction  in  American  Law  Schools  is  to  be  found  in  the 
special  report,  made  by  Professor  Redlich  to  the  Carnegie  Foundation 
for  the  Advancement  of  Teaching,  on  "The  Case  Method  in  American 
Law  Schools."  Professor  Redlich,  of  the  Faculty  of  Law  in  the  Uni- 
versity of  Vienna,  was  brought  to  this  country  to  make  a  special  study 
of  methods  of  legal  instruction  in  the  United  States  from  the  stand- 
point of  one  free  from  those  prejudices  necessarily  engendered  in 
American  teachers  through  their  relation  to  the  struggle  for  supremacy 
so  long,  and  at  one  time  so  vehemently,  waged  among  the  rival  sys- 
tems. From  this  masterly  report,  so  replete  with  brilHant  analysis 
and  discriminating  comment,  the  following  brief  extracts  are  taken. 
Speaking  of  the  text-book  method  Professor  Redlich  says: 

"The  principles  are  laid  down  in  the  text-book  and  in  the  profes- 
sor's lectures,  ready  made  and  neatly  rounded,  the  predigested  essence 

(iU) 


GU:^^G5 


IV  PREFACE 

of  many  Judicial  decisions.  The  pupil  has  simply  to  accept  them  and 
to  inscribe  them  so  far  as  possible  in  his  memory.  In  this  way  the 
scientific  element  of  instruction  is  apparently  excluded  from  the  very 
first.  Even  though  the  representatives  of  this  instruction  certainly  do 
regard  law  as  a  science — that  is  to  say,  as  a  system  of  thought,  a  group- 
ing of  concepts  to  be  satisfactorily  explained  by  historical  research  and 
logical  deduction — they  are  not  willing  to  teach  this  science,  but  only 
its  results.  The  inevitable  danger  which  appears  to  accompany  this 
method  of  teaching  is  that  of  developing  a  mechanical,  superficial  in- 
struction in  abstract  maxims,  instead  of  a  genuine  intellectual  probing 
of  the  subject-matter  of  the  law,  fulfilling  the  requirements  of  a 
science." 

Turning  to  the  case  method  Professor  Redlich  comments  as  follows : 

"It  emphasizes  the  scientific  character  of  legal  thought;  it  goes  now 
a  step  further,  however,  and  demands  that  law,  just  because  it  is  a 
science,  must  also  be  taught  scientifically.  From  this  point  of  view  it 
very  properly  rejects  the  elementary  school  type  of  existing  legal  edu- 
cation as  inadequate  to  develop  the  specific  legal  mode  of  thinking,  as 
inadequate  to  make  the  basis,  the  logical  foundation,  of  the  separate 
legal  principles  really  intelligible  to  the  students.  Consequently,  as  the 
method  was  developed,  it  laid  the  main  emphasis  upon  precisely  that 
aspect  of  the  training  which  the  older  text-book  school  entirely  neg- 
lected— the  training  of  the  student  in  intellectual  independence,  in  in- 
dividual thinking,  in  digging  out  the  principles  through  penetrating 
analysis  of  the  material  found  within  separate  cases;  material  which 
contains,  all  mixed  in  with  one  another,  both  the  facts,  as  life  creates 
them,  which  generate  the  law,  and  at  the  same  time  rules  of  the  law 
itself,  component  parts  of  the  general  system.  In  the  fact  that,  as  has 
been  said  before,  it  has  actually  accomplished  this  purpose,  lies  the 
great  success  of  the  case  method.  For  it  really  teaches  the  pupil  to 
think  in  the  way  that  any  practical  lawyer — whether  dealing  with  writ- 
ten or  with  unwritten  law — ought  to  and  has  to  think.  It  prepares  the 
student  in  precisely  the  way  which,  in  a  country  of  case  law,  leads  to 
full  powers  of  legal  understanding  and  legal  acumen;  that  is  to  say, 
by  making  the  law  pupil  familiar  with  the  law  through  incessant  prac- 
tice in  the  analysis  of  law  cases,  where  the  concepts,  principles,  and 
rules  of  Anglo-American  law  are  recorded,  not  as  dry  abstractions,  but 
as  cardinal  realities  in  the  inexhaustibly  rich,  ceaselessly  fluctuating, 
social  and  economic  life  of  man.  Thus  in  the  modern  American  law 
school  professional  practice  is  preceded  by  a  genuine  course  of  study, 
the  methods  of  which  are  perfectly  adapted  to  the  nature  of  the  com- 
mon law." 

The  general  purpose  and  scope  of  this  series  were  clearly  stated  in 
the  original  announcement: 

"The  General  Editor  takes  pleasure  in  announcing  a  series  of  schol- 
arly casebooks,  prepared  with  special  reference  to  the  needs  and  limi- 


PREFACE  V 

tations  of  the  classroom,  on  the  fundamental  subjects  of  legal  educa- 
tion, which,  through  a  judicious  rearrangement  of  emphasis,  shall  pro- 
vide adequate  training  combined  with  a  thorough  knowledge  of  the 
general  principles  of  the  subject.  The  collection  will  develop  the  law 
historically  and  scientifically ;  English  cases  will  give  the  origin  and 
development  of  the  law  in  England;  American  cases  will  trace  its  ex- 
pansion and  modification  in  America ;  notes  and  annotations  will  sug- 
gest phases  omitted  in  the  printed  case.  Cumulative  references  will  be 
avoided,  for  the  footnote  may  not  hope  to  rival  the  digest.  The  law 
will  thus  be  presented  as  an  organic  growth,  and  the  necessary  con- 
nection between  the  past  and  the  present  will  be  obvious. 

"The  importance  and  difficulty  of  the  subject  as  well  as  the  time  that 
can  properly  be  devoted  to  it  will  be  carefully  considered  so  that  each 
book  may  be  completed  within  the  time  allotted  to  the  particular  sub- 
ject. *  *  *  If  it  be  granted  that  all,  or  nearly  all,  the  studies  re- 
quired for  admission  to  the  bar  should  be  studied  in  course  by  every 
student — and  the  soundness  of  this  contention  can  hardly  be  seriously 
doubted — it  follows  necessarily  that  the  preparation  and  publication  of 
collections  of  cases  exactly  adapted  to  the  purpose  would  be  a  genuine 
and  by  no  means  unimportant  service  to  the  cause  of  legal  education. 
And  this  result  can  best  be  obtained  by  the  preparation  of  a  systematic 
series  of  casebooks  constructed  upon  a  uniform  plan  under  the  super- 
vision of  an  editor  in  chief.     *     *     * 

"The  following  subjects  are  deemed  essential  in  that  a  knowledge  of 
them  (with  the  exception  of  International  Law  and  General  Juris- 
prudence) is  almost  universally  required  for  admission  to  the  bar; 

Administrative  Law,  Equity  Pleading. 

Agency.  Evidence. 

Bailments.  Insurance. 

Bills  and  Notes.  International  Law. 

Carriers.  Jurisprudence. 

Code  Pleading.  Legal  Ethics. 

Common-Law  Pleading.  Partnership. 

Conflict  of  Laws.  Personal  Property. 

Constitutional  Law.  Public  Corporations. 

Contracts.  Quasi  Contracts. 

Corporations.  Real  Property. 

Criminal  Law.  Sales. 

Criminal  Procedure.  Suretyship. 

Damages.  Torts. 

Domestic  Relations.  Trusts. 

Equity.  (Wills  and  Administration.  ' 

"International  Law  is  included  in  the  list  of  essentials  from  its  in- 
trinsic importance  in  our  system  of  law.  As  its  principles  are  simple 
in  comparison  with  municipal  law,  as  their  application  is  less  technical. 


VI  PREFACE 

and  as  the  cases  are  generally  interesting,  it  is  thought  that  the  book 
may  be  larger  than  otherwise  would  be  the  case. 

"The  preparation  of  the  casebooks  has  been  intrusted  to  experienced 
and  well-known  teachers  of  the  various  subjects  included,  so  that  the 
experience  of  the  classroom  and  the  needs  of  the  students  will  furnish 
a  sound  basis  of  selection." 

Since  this  announcement  of  the  Series  was  first  made  there  have 
been  published  books  on  the  following  subjects : 

Administrative  Lazv.  By  Ernst  Freund,  Professor  of  Law  in  the 
University  of  Chicago. 

Agency.  By  Edwin  C.  Goddard,  Professor  of  Law  in  the  University 
of  Michigan. 

Bills  and  Notes.  By  Howard  L.  Smith,  Professor  of  Law  in  the  Uni- 
versity of  Wisconsin,  and  Underbill  Moore,  Professor  of  Law  in 
Columbia  University. 

Carriers.  By  Frederick  Green,  Professor  of  Law  in  the  University  of 
Illinois. 

Conflict  of  Laws.  By  Ernest  G.  Lorenzen,  Professor  of  Law  in 
Yale  University. 

Constitutional  Law.  By  James  Parker  Hall,  Dean  of  the  Faculty  of 
Law  in  the  University  of  Chicago. 

Contracts.    By  Arthur  L.  Corbin,  Professor  of  Law  in  Yale  University. 

Corporations.  By  Harry  S.  Richards,  Dean  of  the  Faculty  of  Law  in 
the  University  of  Wisconsin. 

Criminal  Law.  By  William  E.  Mikell,  Dean  of  the  Faculty  of  Law  in 
the  University  of  Pennsylvania. 

Criminal  Procedure.  By  William  E.  Mikell,  Dean  of  the  Faculty  of 
Law  in  the  University  of  Pennsylvania. 

Damages.  By  Floyd  R.  Mechem,  Professor  of  Law  in  the  University 
of  Chicago,  and  Barry  Gilbert,  of  the  Chicago  Bar. 

Equity.  By  George  H.  Boke,  Professor  of  Law  in  the  University  of 
Oklahoma. 

Evidence.  By  Edward  W.  Hinton,  Professor  of  Law  in  the  Universi- 
ty of  Chicago. 

Insurance.  By  William  R.  Vance,  Professor  of  Law  in  Yale  Uni- 
versity. 

International  Law.  By  James  Brown  Scott,  Professor  of  International 
Law  in  Johns  Hopkins  University. 

Legal  Ethics,  Cases  and  Other  Authorities  on.  By  George  P.  Costigan, 
Jr.,  Professor  of  Law  in  Northwestern  University. 

Partnership.  By  Eugene  A.  Gilmore,  Professor  of  Law  in  the  Uni- 
versity of  Wisconsin. 


PREFACE  Yll 

Persons  (including  Marriage  and  Divorce).     By  Albert  M.  Kales,  of 

the  Chicago  Bar,  and  Chester  G.  Vernier,  Professor  of  Law  in 

Stanford  University. 
Pleading  (Common  Law).     By  Clarke  B.  Whittier,  Professor  of  Law 

in  Stanford  University,  and  Edmund  M.  Morgan,  Professor  of 

Law  in  Yale  University. 
Property  (Titles  to  Real  Property).     By  Ralph  W.  Aigler,  Professor 

of  Law  in  the  University  of  Michigan. 
Property  (Personal).  By  Harry  A.  Bigelow,  Professor  of  Law  in  the 

University  of  Chicago. 
Property    (Rights  in  Land).      By   Harry  A.   Bigelow,   Professor  of 

Law  in  the  University  of  Chicago. 
Property  (Wills,  Descent,  and  Administration) .     By  George  P.  Costi- 

gan,  Jr.,  Professor  of  Law  in  Northwestern  University. 
Property  (Future  Interests).     By  Albert  M.  Kales,  of  the  Chicago 

Bar. 
Quasi  Contracts.    By  Edward  S.  Thurston,  Professor  of  Law  in  Yale 

University. 
Sales.    By  Frederic  C.  Woodward,  Professor  of  Law  in  the  University 

of  Chicago. 
Suretyship.     By  Crawford  D.  Hening,   formerly  Professor  of  Law 

in  the  University  of  Pennsylvania. 
Torts.     By  Charles  M.  Hepburn,  Dean  of  the  Faculty  of  Law  in  the 

University  of  Indiana. 
Trusts.    By  Thaddeus  D.  Kenneson,  Professor  of  Law  in  the  Univer- 
sity of  New  York. 

It  is  earnestly  hoped  and  believed  that  the  books  thus  far  published 
in  this  series,  with  the  sincere  purpose  of  furthering  scientific  training 
in  the  law,  have  not  been  without  their  influence  in  bringing  about  a 
fuller  understanding  and  a  wider  use  of  the  case  method. 

Wii^iviAM  R.  Vance, 

General  Editor. 
June,  1921. 


TABLE  OF  CONTENTS 


CHAPTER  I 


Introductory — Nature  of  Quasi  Contract 
Section  Page 

1.  Sources  and  Scope  of  Quasi  Contract 1 

I.     Noncontractual  Obligation  to  Pay  a  Sum  of  Money 1 

(A)  Customary  or  Official  Obligation 1 

(B)  Statutory  Obligation 4 

(C)  Obligation  Created  by  a  Record 9 

II.     Obligation  to  Account — Unjust  Enrichment 11 

2.  Distinction  Between  Contract  and  Quasi  Contract 23 

I.     In  General 23 

II.     Construction  of   Statutes 33 

(A)  The  Statute  of  Limitations 33 

(B)  Statutes   Regulating  Procedure 37 

(C)  Stockholders'  Statutory  Liability 44 

(D)  Contract  Clause  of  Federal  Constitution 48 

CHAPTER  II 

Benefits  Conferred  by  Mistake 

L    The  General  Doctrine:  Mistake  of  Fact 51 

I.     Fundamental  Distinctions   51 

(A)  Mutual  Mistake — Unilateral  Mistake 51 

(B)  Voluntary  Payment  and  Compromise 64 

(C)  Mistake  as  to  Collateral  Matters 75 

II.     Defenses    82 

(A)  Retention  of  Benefit  by  Defendant  not  Unconscionable. .  82 

(B)  Negligence    ' 89 

(C)  Change  of  Position  by  Defendant 96 

(D)  Purchase  for  Value 105 

III.     Notice  and  Demand — Accrual  of  Cause  of  Action Ill 

2.  Specific  Applications  of  the  Doctrine 119 

I.     Mistake  as  to  Existence  of  a  Contract  Between  the  Parties. ..  119 
II.     Mistake  as  to  Title  to  Property  which  is  the  Subject-Matter  of 

a   Contract   141 

III.  Mistake  as  to  Existence  of  Subject-Matter  of  a  Contract 152 

IV.  Mistake  as  to  Nature  of  Subject-Matter  of  a  Contract 166 

V.     Special  Rules  as  to  Negotiable  Paper 179 

3.  Mistake   of  Law 198 


CHAPTER  III 

Benefits  Conferred  Undeb  a  Contract  Which  Has  Been  Pabtiallt  Per- 
formed 

1.     Further  Performance  Impossible 233 

I.     By  Defendant   233 

II.     By  Plaintiff    246 

Thubs. Quasi  CoNT.  {i\) 


X  TABLE   OF   CONTENTS 

Section  Page 

2.  Contract  Illegal  268 

3.  Contract  Unenforceable  Because  of  Statute  of  Frauds 312 

I.    Defendant   Repudiates 312 

II.     Plaintiff    Repudiates 341 

4.  Repudiation  or  Substantial  Breach 352 

I.     By  Defendant    352 

II.     By   Plaintiff   386 

CHAPTER  IV 
Benefits  VoIiUntabily  Confekred  Without  Conteact 

1.  Plaintiff  Acted  Without  Expectation  of  Compensation 428 

2.  Plaintiff  Acted  with  Intention  of  Claiming  Compensation 445 


CHAPTER  V 
Benefits  Conferred  Under  Compulsion 

1.  Discharge  of  Defendant's  Obligation 484 

I.     In  General    484 

II,     Indemnity  and  Contribution 496 

(A)  Between   Co-obligors    496 

(B)  Between  Tort-Feasors   502 

2.  Duress    516 

3.  Compulsion  Through  Legal  Proceedings , 535 

4.  Compulsion  Coupled  with  Illegality 554 

CHAPTER   VI 

Waiver  op  Tobt 573 


TABLE    OF  CASES 

[oases  cited  in  footnotes  are  indicated  by  italics,   where  small  capitals 

ABE  USED,  the  CASE  IS  REFERRED  TO  IN  THE  TEXT] 


Abbe    v.    Marb 

Abbott  V.  Blossom 

Abbott   V.   Inskip 

Acheson  v.   Miller 

Ada  County  v.  Gess 

Aiken  v.  Sbort 

Allegheny  County  v.  Geieb..,. 

Allen    V.    Burns 

Allen    V.    Hammond 

Allison  V.  Bristol  Marine  Ins.  Co. 
American  Life  Ins.  Co.  v.  McAden 

Anlceny  v.  Clark 

Anonyanlous    5, 

Appleby    v.    Dods 

Appleby  v.  Myers 

Appleton  Bank  v.  McGilvray. . . . . 
Armstrong     County     vi.     Clarion 

County    

Arnold,   In    re 

Arris    v.    Stukely 14, 

Ash  V.   McLellan 

Aspinwall  v.  Sacchi 

Astley  V.  Reynolds 

Atkinson  v.  Denby 

Atlantic    Coast    Line    R.    Co.    v. 

Sebirmer    

Avery  v.  WtHsow 


Babcock  v.  Thompson , 

Bailey  v.  Bussing 

Baker  v.  Courage 

Baldivin  v.   Potter , 

Bank  v.  Fonda 

Bank  v.  Hull , 

Bank  of  ChilUcothe  v.  Dodge. . . 

Bannatyne  v.  Maclver 

Barnes  v.  Shoemaker , 

Bartholomew   v.   Jackson , 

Bates  V.  Bigby , 

Bates  V.  New  York  Life  Ins.  Co.. 

Becbtel   v.    Chase 

Benson   v.    Monroe , 

Bilbie  v.  Lumley 

Bishop  V.  Broion 

Bize  V.  Dickason , 

Bize  v.  Dickason 

Blakely  v.  Mnller  &  Co , 

Bloxsome  V.   Williams , 

Boardman  v.   Ward , 

Board   of  Sup'rs  v.  Ellis 


Page 
29G 
598 
345 
504 
227 

75 
225 
392 
154 
235 
366 
370 
233 
250 
267 

92 

506 
292 
573 
94 
502 
516 
561 

103 
391 

295 
504 
114 
310 
42 
192 
232 
135 
449 
453 
597 
522 
601 
537 
198 
112 
203 
203 
245 
269 
435 
226 


Page 

Bond  V.  Aitkin 129 

Bonnel  v.  Foulke 13,  198 

Boane    v.    Coe 330 

Boston  Ice  Co.  v.  Potter 447 

Boulton  v.  Jones 449 

Bowen   v.   Kimball 394 

Braithwaite  v.  Akin 599 

Brisbane  v.  Dacres 200 

Bristow  V.   Eastman 23,  58S 

Britton  v.  Turner 413 

Brown    v.    Brown 593 

Brown  V.  Hodgson 491 

Brown   v.   Mcintosh 555 

Brown  v.  McKinally 64,  535 

Broicn  v.  St.  Paul,  M.  d  M.  R.  Co.  385 

Brown   v.    Woodbury 365 

Browning  v.  Morris 279 

Brundred  v.   Rice 591 

Buel    V.    Boughton 84 

Buffalo  V.   O'Malley 79 

BuUer  v.  Harrison 96 

Butterfield  v.  Byron 263 

Byrd    V.    Boyd 406 

Byrne    v.    Schiller 235 


Campbell  Printing  Press  &  Mfg. 
Co.   V.   Marsh 

Canal  Bank  v.  Bank  of  Albany 

Carpenter  v.  Northborough  Nat. 
Bank    

Carpenter  v.   Southworth 

Carson  v.    McFarland 

Catts  v.  Phalen 292, 

Cham'plin  v.  Rowley 

Champlin  v.    Rowley 

Chandler  v.    Sanger 

Chandler  v.  Webster 

Chapman   v.    Cole 

Chapman  v.  Haley 

Chase    v.    Corcoran 

Chase    v.    Dwinal 

Chatfield  V,  Paxton 

Childs  V.  HanHs  Mfg.  Co 

Christopher    v.    Norvell 

Citizens'  Bank  v.  Schwarzchild  & 
Sulzberger    Co 

City  Trust,  Safe  Deposit  &  Sure- 
ty Co.  V.  American  Brewing 
Co 

Clark  V.  Manchester 

Clark  V.  Mayor  of  New  York..,. 


362 
190 

189 
222 
89 
300 
388 
390 
539 
242 
170 
2S5 
454 
518 
204 
39 
44 

191 


497 
373 

375 


TnuBS. Quasi  Cont. 


(xi) 


Xll 


TABLE    OF    CASES 


Page 

Clark  v.  Pinney 552 

Clary  v.  Clary 437 

Clay    V.    Yates 268 

Cleaby   v.    Sohiee 263 

Cleveland  Cliffs  Iron  Go.  v.  East 

Itasca    Mining    Co 168 

Clinton  v.   Strong 528 

Coe  V.  Smith 240 

Collier  v.  Coates 341 

Concord  Coal  Co.  v.  Ferrin 450 

Conner  v.  Henderson 178 

Constantinides  v.  Walsh 477 

Continental  Life  Ins.  Co.  v.  Uous- 

er    369 

Cooper  V.  Cooper 439 

Core's  Case 12 

Cotnam  v.  Wisdom 461 

Cox  V.  Prentice 166 

Craft  V.  South  Boston  R.  R 138 

Crawford  v.  Wliittal 9 

Cripps  V.  Reade 144 

Cromwell  v.   Benjamin 466 

Cromwell  v.  Norton 339 

Crown  Cycle  Co.  v.  Brown 605 

Culhreath  V.  Culhreath 213 

Cunningham   v.    Reardon 475 

Cutter  V.  Powell 249 

Daintfouth  v.  Bennett 562 

Dale  V.  Sollet 22 

Danforth  v.   Dewey 356 

Daniell  v.  Sinclair 220 

Davidson   v.   Laughlin 375 

Davis  V.  School  Dist.  No.  2 447 

Day  v.  Kinney 177 

Day  V.  New  York  Cent.  R.  Co...  324 

Deaver  v.  Bennett 271 

De  Brauwere  v.  De  Brauwere...  466 

Decker  v.  Pope    496 

De  Graff  v.  Ramsey  County 532 

De  Montague  v.   Bacharach 360 

Devine  v.  Edwards 54 

Dickerman  v.  Lord 535 

D-iggs   v.   Kirhy 144 

DiSBEOW    V.    DXJBAND 435 

Dorsey  v.  Jackman 141 

Dowling  V.  McKenney 328 

Duppa    V.    Gerard 3 

Dupuy  V.  Roebuck 551 

Durrant  v.  Ecclesiastical   Com'rs 

for  England  and  Wales 102 

Dutch  v.  Wabren 20 

Duval  V.   Wellnum 287 

Earl  of  Lincoln  v.  Topcliff 12 

Earle  v.  Bickford 147 

Earle  v.  Coburn 460 

Earle  v.  De  Witt 144 

Eastern   Expanded   Metal    Co.    v. 
Webb    Granite   &    Construction 

Co 275 

Eaton  V.   Gladicell 397,  399 

Edmunds  v.    Walling  ford 486 

Eicholz   V.  Bannister 148 


Page 

Erkens  v.  Nicolin 216 

Evans  v.  Miller 599 

Exall  V.   Partridge 484 

Fabian  v.  Wasatch  Orchard  Co. . .  331 

Faircloth  v.  Kenlaw 320 

E'alcke  v.   Scottish   Imperial   Ins. 

Co 456 

Fargusson  v.  Winslaw 522 

Fanner  v.  Arundel 203 

Farmer   v.   Abundel 203 

Farron   v.    Sherwood 382 

Fay  V.  Oliver 361 

Feeney  v.  Bardsley 394 

Ferguson   v.    Carrington 603 

First  Nat.  Bank  v.  Oberne 133 

First  Nat.  Bank  v.  Sargeant 545 

First  Nat.  Bank  v.  Van  Vooris...  43 

Fisher  v.  Hildreth 273 

Forbis  v.   In^nan 453 

Force   v.   Haines 460 

Ford  V.    Stroud 335 

Forsyth  v.  Ganson 470 

Freeland  v.    Williams. 50 

Fbeeman    v.    Jeffries 115 

Fuel  Co.  v.  Tuck 42 

Fuller  V.  Smith 186 

Gay  V.   Mooney 315 

Germania    Bank    of    Minneapolis 

V.    Boutell 184 

Gillet  V.  Maynard 353 

Gilmour  v.  Thompson 559 

Gleason  v.   Warner 476 

GoETZ  V.  Bank  of  Kansas  City 

195,  196 

Gompertz    v.    Bartlett 168 

Gordon  v.  Chief  Commissioner  of 

Metropolitan  Police 306 

Gray  v.  Boston  Gaslight  Co.  . .  511 

Gray  v.  Roberts 278 

Great  Northern  R.   Co.  v.   Swaf- 

fleld   460 

Ch-egory  v.  Lee 32 

Griffin  v.   Sansom 443 

Griggs  v.  Austin 234 

Guetzkow  Bros.  Co.  v.  Brccse...  525 

Ilalcs  v.  Freeman 488 

HalVs  Ex'r  v.  Farmers'  Bank  of 

Kentucky   218 

Hambly    v.    Trott 573 

Hannay  v.  GuaraaUy  Trust  Co.  of 

Neio  York   197 

Harris  v.  Lloyd 76 

Harse  v.  Pearl  Life  Assur.  Co.. ..  270 

Hastelow  v.  Jackson 284 

Hathaway  v.  Delaware  County. .  138 

Haven  v.  Foster 228 

Hawley  v.  Moody 321 

Haynes  v.   Rudd 568 

Haynes  v.  Rudd 296 

Hecht  v.   Batcheller 176 

Heckman    v.    Swartz 566 


TABLE   OF  CASES 


XIU 


Page 
Heiserman  v.  Burlington,  C.  R.  & 

N.  R,  Co 531 

Hencke  v.  Tivomeij 47 

Hendricks  v.  Goodricli 57 

Hermann    v.    Cliarleswortli 282 

Hertzog   v.    Hertzog 24 

Hewer  v.  Bartliolomew 11,  198 

Eindnvarch   v.   Hoffman 591 

Hirst    v.    Tolson 239 

HitchcocJc  V.  Giddings 154 

Hobbs   V.   Boatrlght 302 

hobbs  v.  boatrigiit 291 

Hoffman   v.   Bank   of   Milwau- 
kee    195,  196 

Hogg  V.   Longstretti 486 

Hoggan  V.   Calioon 513 

Holbroolc  V.  Armstrong 312 

Holland  v.  Russell 100 

Holliday  v.  Coe 246 

Holman  v.  Johnson 299 

Holmes,  Booth  &  Haydcns  v.  Mc- 

Gill    165 

Hosmer  v.  Wilson 381 

Houghton  v.  Danville 469 

Howard    v.    Randolpli 432 

Hoyt   V.   Paw   Paw    Grape   Juice 

Co 340 

Hunt  V.  Amidon 496 

Hmit  V.  Silk 362 

Hurley  v.   Lamoreaux 608 

Hysell   V.    Sterling    Goal    &    Mfg. 
CO:     264 

Inhabitants  of  South  Scituate  v. 

Inhabitants  of  Hanover 445 

Inhabitants  of  Town  of  Berlin  v. 

School  Soc.  of  New  Britain 489 

Irving  V.  Wilson 517 

Jackson  v.  Atlanta 84 

Jackson   v.    McKnight 86 

James,    Ex   parte 223 

Jenkins   v.    Tucker 474 

Jennings  v.  Lyons 256 

Joannin   v.   Ogilvie 540 

Johnson  v.  Fehsefeldt 423 

Johnson   v.    Saum 60 

Johnson  v.   Torpy 503 

Johnston  v.  Bank 186 

Jones   V,   Hoar 595 

Jones  v.  Insurance  Co.  of  North 

Anferica    127 

Jones   V.    Judd 258 

Jones   V.   Pope 33 

Jones  V.  Ryde 170 

Jordan  v.  Robinson 35 

Kearley  v.   Thompson 278 

Keeling  v.  Schastey  &  Vollm'er. .  262 

Kehoe  v.  Rutlieri'ord 377 

Kelley  v.  Lindsey 132 

Kelly  V.  Solari 89 

Ketch um  v^  Evertson 402 

Kicks  V.  State  Bank  of  Lisbon. . .  370 
TnuRS. Quasi  Const.— B 


Page 
King  V.   Welcome 346 

Kirknian  v.  Philips'  Heirs 611 

Kitchen  v.  Geeenabaum 295 

Ladd  V.  Barton 280 

IjA    Fontain    v.    Hayhurst 438 

Lakeman  v.  Pollard >. . .  255 

Lambert  v.  Heath 159 

Lamine  v.   Dorrell 15,  573 

Lane  v.  Shackford 344 

Langevin  v.  St.  Paul 77 

Lawton   v.    Howe 112 

Leather  Mfgs.  Bank  v.  Merchants' 

Bank 116 

Lehigh  Coal' &  Navigation  Co.  v. 

Broicn    524 

Lemon  v.  Grosskopf 310 

Lightly   v.    Clouston 582 

Limerick  v.  Lee 421 

Lincoln   (Earl)    v.   Topcliff 12 

Lindner  v.   Cape  Brewery  &  Ice 

Co 408 

LiNDON  V.  Hooper 521 

Lockman  v.  Cobb 291 

Lord   North's  Case 2 

Louisiana    ex    rel.     Folsom    v. 

Mayor  of  New  Orleans 51 

Lowe  V.  Wells  Fargo  &  Co.   Ex- 
press      55 

Lowenstein  v.  Bache 517 

LowRY  V.   BouBDiEU 203,  204 

Lynn  v.   Seby 426 

Lyon    V.    Minor 461 

McAfee  v.  Covington 4S 

McArthur  v.  Luce 72 

McCammon  v.  Peck 240 

McClellan  v.  Harris 257 

Macclesfield   Corp.  v.   Great  Cen- 
tral   Ry 480 

McClure  v.  Central  Trust  Co 170 

McCready  v.  Van  Antwerp 500 

McGonigle  v.  Klein 399 

McMullen  v.  Hoffman 311 

Magtiire  v.  State  Sav.  Ass'n...  524 
Manhattan    Fire    Alarm    Co.    v. 

Weber    .-.  478 

Manitowoc    Steam    Boiler   Works 

V.  Manitowoc  Glue  Co 397 

Manthey  v.   Schueler 502 

JNIarcotte  v.   Allen 221 

IMarriot   v.    Hampton 550 

Martin  v.   McCormick 160 

Martin  v.    Sitwell 126 

Mason   v.    Waite 589 

Mathie  v.  Hancock 457 

Mayor  of  London  v.  Gorry 2 

Mayor  of  York  v.  Tonne 3 

Mearkle  v.   Hennepin   County....  529 

Meeeh   v.   Stonrr 275 

Mentone   v,    Athawes 260 

Merchants'   Ins.  Co.  v.  Abbott...   105 
Mercluints'   Nat.   Bank  of  Peoria 
V.  Nichols  &  Shepard  Co 135 


XIV 


T^BLE   OF   CASES 


Page 

Memagh  v.  Michols 412 

Merritt    v.     American     Dock     & 

Trust    Co 453 

Merry  weather  v.    Nixan 502 

Metzger  v.  Greiner 213 

Meyer  v.  Richards 158 

Michener  v.   Watts 280 

Miller  v.  Goddard 421 

Millett  V.  Holt 53 

Miner  v.  Bradley 359 

Mizell  V.  Watson 356 

Montague  v.  Garnett 319 

Moody  V.  Moody 472 

Mooney  v.  York  Iron  Co 380 

Moore  v.   Novvell 38 

Moore  v.  Vestry  of  Fulham 535 

Morgan  v.   Uroff 305 

Morse  v.    Woodioorth 567,  568 

Moses   V.   Macferlan 17,  550 

Mowatt  V.  Wright 71 

Mumf ord  v.  Brown 482 

Mtinro  V.  Butt 395 

Munt  V.   Stokes 82 

National  Bank  of  New  Jersey  v. 

Berrall    193 

National   Bank  &  Loan   Co.   v. 

Peteie    294 

National  Granite  Bank  v.  Tyndale  130 
National  Life  Ins.  Co.  v.  Jones. . .     66 

Neal  V.   Coburn 181 

Neate  v.  Harding 589 

Nevada  Co.  v.  Farnswortti 40 

Newall  V.  Touilinson 98 

New  York  Life  Ins.   Co.  v.  Chit- 
tenden &  Eastman 66 

NiBLO  V.   BiNSSE 263 

Nicholls  V.  Skeel 556 

Niedermeyer     v.     University     of 

Missouri   525 

Nimick  v.  Holm'es 492 

Noble  V.  Williams 446 

Norden  v.  Jones 600 

Northrop  v.  Graves 212 

North's  (Lord)   Case 2 

Norton  V.  Blinn 307 

Norton    ,v.    Bohart 60 

Norton  v.   Coons 498 

Norton    v.    Marden T45 

Noyes  V.  Pugin 380 

O'Brien  v.  Young 40 

Ogden   v.   Maxioell 528 

Okerson  v.  Crittenden 274 

Oom  V.  Bruce 269 

Osborn    v.    Governors    of    Guy's 

Hospital    436 

Otis  V.  CuUum 158 

Oxendale  v.  Wetherell 386 

Parks  V.  Morris,  Layfield  &  Co.. .  609 

Patterson  v.  Patterson 473 

Patterson  v.  Prior 584 

Patrick  v.  Putnam 256 


Page 

Pease  v.   Ecnvard 36 

Fensacola  &  A.  R.  Co.  v.  Braxton    84 

Perrott  v.  Perrott 200 

Peters  v.  Railroad  Co 533 

Philhrook  v.   Belknap 312 

Phillips,  Ex  parte 458 

Phillips  V.  Homfray 577 

Phillips  V.  Hudson 147 

Pickslay   v.    Starr 432 

Pierpout  v.  Wilson 465 

Pinches    v.    Swedish    Evangelical 

Lutheran  Cliurch 396 

Pool  V.  Allen 51 

Porter  v.  Dunn 384 

Posey   V.    Garth 404 

Potter  V.  Carpenter 429 

Preston    v.    Boston 547 

Preston    v.    Neale 456 

Price  v.  Neal 179 

I'roprietors  of  the   Second  Turn- 
pike Road  V.  Taylor 6 

Pulbrook    t\    Lawes 338 

Quvrm  v.  Hill 475 

Railway  Co.  v.  Swaffield 30 

Ralli  V.   Troop 496 

Ray  v.  Young 318 

Reeder  v.  Anderson's  Adm'rs 454 

Reina  v.  Gross 233 

Reynolds  v.   Reynolds 314 

Reynolds  Bros.  v.  Padgett 585 

Rheel   v.    Hicks 75 

Rhodes,  In  re 32 

Richards  v.  Allen 312 

Riley  v.   Williams 349 

RoMnson  v.   Cummings 438 

Robsert    v.    Andrews 11 

Rogers  v.  Price 472 

Rohr  V.  Baker 452 

Roth    v.    Palmer 606 

Rouvant    v.     San     Antonio     Nat. 

Bank   187 

Ruabon  v.  London  Assur 442 

liwnford  Chemical  Works  v.  Ray  549 

St.  Joseph's  Orphan  Soc.  v.  Wol- 

pert    429 

St.  Jude's  Church  v.  Van  Denberg  428 

Salb   V.    Campbell 350 

Sceva  V.  True 27,  461 

Schultz  V.    Culhertson 565 

Scott    V.    Board    of    Trustees    of 

Town  of  New  Castle  210 

Sears  v.  Grand  Lodge 70 

Sergeant  d  Harris  v.  Stryker 594 

Seymour  v.  Oelrichs 330 

Sharkey  v.  Mansfield 112 

Shaio  V.  ShaiD 344 

Sheiblcy  v.  Cooper 528 

Shepherd  v.  Young 431 

Sherwood    v.    Walker 175 

Shute  &  Limont  v.  McVitie 408 

Simmoneli  v.  White  Star  Lme...  132 


TABLE    OF    CASES 


XV 


Paga 

Slayton    v.    McDonald 384 

Smart  v.   Gale 151 

Smart  v.  White 280 

Smith  V.  Blacliley 569 

Smith    V.    Bromley 556 

Smith    v.    Cuff 560 

Smith  V.  Neale 165 

Smith    V.    Wooding 316 

Smithwick  v.  Whitley 533 

Snow  V.  Prescott 354 

Solinger  v.  Earle 562- 

Spaulding  v,  Kendrick 591 

Speake  v.   Richards 3 

Spencer  v.   Parry 490 

Spooner  v.  Thompson 133 

Springs  v.  Hanover  Nat.  Bank.  .  194 
Stanley   Bros,   v.  Corporation   of 

Nuneaton   220 

Steamship  Co.  v.  Joliffe 7 

Steele  v.  Williams 527 

Stephens  v.  Board  of  Education . .  108 

Stevens    v.    Fitch 553 

Stewart  v.  Wright 287 

Stockett   V.    Watkins 600 

Stokes  V.  Leicis 445 

Stong   V.   Lane 122 

Strang,   Steel   &   Co.   v.  A.   Scott 

d    Co 496 

Strickland  v.  Turner 152 

Sturgis   V.   Preston 117 

Taulbee  v.  McCarty 265 

Taylor  v.  Hare 163 

Taylor  v.  Root 37 

Tcasdale   v.    Stoller 553 

Tenant   v.    Elliott ; 306 

Thomas  v.  Brown 344 

Tightmeyer   v.    Mongold 586 

TiLTON    V.    GbRDON 354 

Timmerman  v.   Stanley 363 

Tinslar  v.  May .' 53 

Todd  V.  Bettingen 324 

Todd  V.  Leach 370 

Todd  V.  Martin 459 

Towers  v.    Barrett 3.52 

Toivnes  v.  Cheney 260 

Township  of  Cincinnati  v.  Ogden  467 

Troy    V.    Bland 217 

Trustees  of  Cincinnati  Tp.  v.  Og- 
den      467 

Tucker  v.  Denton 62 

Turner    v.    Webster 119 

Tyra  v.  Cheney 125 

Ulnfer  v.  Farnsworth 441 

Union  Stockvards  Co.  v.  Chicago, 

B.  &  Q.  R.   Co 509 

17.  S.  V.  Pacific  R.  R 442 


Page 

Van  Deusen  v.  Blum 128 

Van  Santen  v.  Standard  Oil  Co.. .  491 

Van  Valkenburgh  v.  Watson 466 

Varnum  v.  Highgate 218 

Vereycken  v.  Vanden  Brooks 546 

Vickery  v.  Ritchie 121 

Viles    V.    Barfe    &    M.    Traction 

■d   Power   Co 387 

Village  of  Morgan  Park  v.  Knopf  227 

Vischer    v.    Yates 270 

Volker   v.    Fisk 489 

Waite  V.  Shoemaker 425 

Walden  v.  Veasely 4 

Walker  v.  Conant 110 

Walsh   V.  Fisher 255 

Ward   V.   Hood 585 

Ware    v.    Spinney 303 

Washington     Gaslight     Co.     v. 

District  of  Columbia 511 

Watson,   Matter   of 458 

Watson    V.    Cresap 157 

Watson  V.  Donald 237 

Watson  v.  Duykinck 234 

Watson  V.   Stcver 597 

Watts  V.  Lynch 274 

Wayne  County  v.  Reynolds 224 

Webb  V.  Fulchire 281 

Wells  V.  Porter 486 

Wellston  Coal  Co.  v.  Franklin  Pa- 
per Co .- 375 

Western  Assur.  Co.  v.  Towle 586 

Westlake  &  Button  v.  St.  Louis. .  523 

Wheadon  v.  Olds 73 

Wheaton  v.   Hibbard 554 

Whincup  V.  Hughes 237 

White  V.  Continental  Nat.  Bank, .  186 

Whitfield  v.  Zellnor 255 

Wilkinson  v.  Ferree 371 

Wilkinson  v.  Lloyd 236 

Williamson  v.  Johnson 43S 

Wilson    v.    Ray 560 

Windbiel  v.   Carroll 65 

Wojahn  v.  National  Union  Bank 

of  Oshkosh    27 

Wolfe   V.    Howes 251 

Wood  V.   Boynton 172 

Woodruff  V.  Claflin  Co 87 

Wooley   V.   Batte 503 

Worley  v.  Moore Ill 

Wright   V.    Newton 235 

Yatesville  Banking  Co.  v.  Fourth 

Nat.    Bank    191 

Young  v.   Chicopce 264 

Young  V.  Cole 155 


CASES 


IN    THE 


LAW  OF  QUASI  CONTRACT 


CHAPTER  I 
INTRODUCTORY-NATURE  OF  QUASI  CONTRACT 


SECTION  1.— SOURCES  AND  SCOPE  OF  QUASI  CONTRACT 

I.  Noncontractual  Obligation  to  Pay  a  Sum  of  Money 

(A)  Customary  or  Official  Obligation  * 


7  VINER'S  ABRIDGMENT,  343— DEBT  (K)  9. 

If  there  be  a  custom  that  the  collector  of  the  rent  of  the  Lord  oug^ht 
to  pay  22s.  to  the  Lord  for  the  profits  of  the  market  of  the  Lord,  the 
executor  of  the  Lord  niay  have  debt  for  the  22s.  without  bringing  a 
writ  of  account,  for  he  is  not  a  receiver  of  this  but  he  ought  to  pay  it 
whether  he  receives  the  profits  or  not.    Y.  B.  11  H.  VI,  14  b  (1432). 

1  The  cases  in  this  collection  deal  only  with  the  obligation  to  pay  money. 

"Of  a  quasi  contractual  nature,  it  is  submitted,  is  the  duty  of  a  carrier, 
founded  upon  the  customi  of  the  realm  to  receive  and  to  carry  safely.  That 
the  liability  in  such  cases  arises,  not  from  contract  but  from  a  duty,  is  clear. 
While  it  is  true  that  the  liability  is  ordinarily  described  as  one  in  tort,  it  is 
submitted  that  it  has  been  so  described  because  of  the  usual  classification  of 
legal  rights  into  contracts  and  torts,  and  that  since  the  obligation  imposed 
upon  the  can-ier  is  to  act,  the  obligation  is  really  quasi  contractual  in  its  na- 
ture, and  not  in  the  nature  of  a  tort.  If  this  be  the  proper  classification  of 
the  duties  imposed  by  law  upon  a  carrier,  it  must  necessarily  be  true  of  the 
common  liability  of  an  innkeeper  to  receive  guests,  or  to  keep  their  goods  safe- 
ly."    Keener,  Quasi  Contracts  IS. 

See  Bank  of  Orange  v.  Brown  (1829)  3  Wend.  (N.  Y.)  158.  (In  an  action 
against  a  common  carrier  for  a  loss  of  property  arising  from  a  breach  of  duty 
Imposed  by  the  custom  of  the  realm  "the  plaintiff  has  his  choice  of  remedies, 
either  to  bring  assumpsit  or  case.")  Morgan  v.  Ravey  (1861)  6  H.  &  N.  265. 
(Action  against  the  executor  of  an  inn-keeper  by  a  guest  whose  property  had 
been  stolen  during  the  night  "We  think  the  cases  have  established  that 
Thues.Quasi  Cont. — ^1 


2  INTRODUCTORY NATURE  OF  QUASI  CONTRACT       (Ch.  1 

LORD  NORTH'S  CASE. 

(Court  of  King's  Bench,  15SS.     2  Leon.  179.) 

The  Queen  g^ranted  unto  the  Lord  North  and  his  heirs  the  fines 
pro  licentia  concordandi,  and  one  would  not  pay  him  the  fine;  for 
which  cause  the  Lord  North  brought  an  action  upon  the  case  against 
him  and  declared  upon  indebitatus  assumpsit  &c. 

Godfrey  moved  this  matter  to  the  court  to  know  their  opinion  if 
such  action  would  lie  for  the  matter  or  not. 

Fennor,  for  a  fine  in  a  court-baron  or  court-leet  debt  lieth ;  but  as  he 
conceived  here  this  action  doth  not  He,  for  it  is  a  real  fine  and  there  is 
no  contract  between  the  parties ;  but  the  same  is  given  by  the  law. 

And  some  were  of  opinion  that  debt  lieth  for  a  relief,  for  there  is  a 
contract  by  fealty. 

Gawdy,  J.,  conceived  that  the  action  doth  well  lie;  for  it  is  not 
any  casual  profit  and  therefore  debt  lieth  for  it,  although  it  be  an  in- 
heritance: and  see  Dyer,  28  H.  VIH,  24.  The  heir  shall  have  an 
action  of  debt  upon  a  nomine  pcense  reserved  by  his  ancester. 

Wray,  C.  J.  I  do  not  see  that  he  hath  any  other  remedy,  and 
therefore  I  am  of  opinion  that  this  action  will  lie. 


MAYOR  OF  LONDON  v.  GORRY. 

(Court  of  King's  Bench,  1G76.     2  Lev.  174.) 

Assumpsit  for  money  due  by  custom  for  scavage ;  upon  non  assump- 
sit the  jury  found  the  duty  to  be  due,  but  that  no  promise  was  expressly 
made ;  and  whether  assumpsit  lies  for  this  money  thus  due  by  custom, 
without  express  promise?  was  the  question: 

Resolve;d,  it  does,  and  judgment  for  the  plaintiff.* 

where  a  relation  exists  between  two  parties,  which  involves  the  performance 
of  certain  duties  by  one  of  them  and  the  payment  of  reward  to  him  by  the 
other,  the  law  will  imply,  or  the  jury  may  infer,  a  promise  by  each  party  to 
do  what  is  to  be  done  by  him.  We  cnnnot  disthiguish  this  case  from  the  case 
of  a  carrier."  Per  Pollock,  C.  B.)  Chudnovski  v.  Eckels  (1908)  2.32  111.  812, 
83  N.  E.  846.  (Assumpsit  lies  against  a  carrier  for  breach  of  its  duty  to  carry 
safely.  "The  law  presumes  or  implies  from  the  fact  of  receiving,  as  common 
carrier,  the  passenger  to  carry  for  hire,  a  contract."  Such  obligation  is  an 
"implied  contract"  within  the  statute  conferring  jurisdiction  upon  the  mu- 
nicipal court  of  Chicago.)  This  last  decision  is  criticized  in  3  Illinois  Law 
lievievv,  46. 

In  connection  with  the  cases  in  the  present  section,  dealing  with  the  Sources 
and  Scope  of  Quasi  Contract,  the  liate  Dean  Ames'  article  on  the  History  of 
Assumpsit,  in  2  Harvard  Law  Review,  1,  53  (reprinted  in  3  Select  Essays  in 
Anglo-American  Legal  History,  259),  should  be  read.  See  also  Ames'  Lectures 
on  Legal  History,  passim. 

2  Accord :  The  Barber  Surgeons  of  London  v.  Pelson  (1679)  2  I^ev.  252.  (As- 
sumpsit lies  for  money  forfeited  by  a  by-law  of  a  corporation  for  not  serving 
in  the  ofhee  of  steward  of  the  company.)     Mayor  of  Loudon  v.  Hunt  (16S1)  3 


Sec.  1)        SOURCES  AND  SCOPE  OF  QUASI  CONTRACT  3 

DUPPA  V.  GERARD. 
(Court  of  King's  Bench,  16S9.     Comb.  1G3.) 

Debt  for  fees  of  knighthood,  and  the  plaintiff  institul'd  himself  as 
gentlemen  usher  to  the  King,  attendant  on  the  King,  and  set  forth  a 
custom  to  have  i5  of  every  one,  that  is  made  a  knight.  Judgment  pro 
quer',  and  it  v^as  said  by  the  Chief  Justice,  that  it  was  so  adjudged 
lately  in  C.  B. 

Nota. — It  was  alleged  that  Gerard  was  made  a  knight  voluntarily. 


MAYOR  OF  YORK  v.  TOUNE. 

(Court  of  King's  Bench,  1699.     1  Ld.  Raym.  502.) 

The  plaintiffs  brought  indebitatus  assumpsit  against  the  defendant 
for  a  fine  imposed  upon  him  for  not  serving  the  office  of  Sheriff  of  the 
City  of  York,  being  duly  elected  according  to  the  custom,  and  accord- 
ing to  the  custom  fined  for  refusal,  &c.  And  upon  demurrer  to  the 
declaration  the  last  paper  day  of  this  term  Sir  Bartholomew  Shower  for 
the  defendant  said,  that  the  action  in  this  case  would  not  lie.  And 
Holt  seemed  to  incline  to  the  same  opinion.  And  upon  motion  of  the 
plaintiff's  counsel,  that  it  might  stay  till  the  next  term.  Holt,  Chief 
Justice,  said,  that  it  should  stay  till  Dooms-Day  with  all  his  heart.  But 
RoKEBY  seemed  to  be  of  opinion,  that  the  action  would  lie.  Et  ad- 
journatur. 

Note,  a  day  or  two  after  I  met  the  Lord  Chief  Justice  Treby  visiting 
the  Lord  Chief  Justice  Holt  at  his  house.  And  Holt  repeated  the 
said  case  to  him,  as  a  new  attempt  to  extend  the  indebitatus  assumpsit, 
which  had  been  too  much  encouraged  already.  And  Treby,  Chief 
Justice,  seemed  also  to  be  of  the  same  opinion  with  Holt.' 


SPEAKE  V.  RICHARDS. 

(Court  of  Common  Pleas,  1G17.     Hob.  206.) 

Hugh  Speake  brought  an  action  of  debt  of  i523.  l'7s.  against  Ed- 
ward Richards,  late  High  Sheriff  of  the  county  of  Southampton,  and 
declared,  that  one  Paramour  and  others  were  bound  by  recognizance  in 
Chancery  in  £2000.  to  the  plaintiff,  and  that  after  other  process  and 

Lev.  37.  (Assumpsit  lies  against  the  ship  master  to  collect  a  customary  duty 
on  cheese  brought  into  London  in  a  ship,  even  though  the  ship  master  does 
not  own  the  cheese.) 

8  In  accord  with  the  opinion  of  Rokeby,  J.,  are  Evelyn  v.  Chichester  (1765)  b 
Surr.  1717,  and  Whitfield  v.  Hunt  (17S4)  2  Doug.  727,  and  note.  But  Lord 
Holt  continued  irreconcilable.  Anonymous  (1702)  7  Mod.  12.  (Holt,  C.  J.: 
"It  has  been  held  that  an  indebitatus  assumi)sit  would  lie  for  a  customary 
fine  of  a  copy  holder;  but  he  said  he  never  could  be  reconciled  to  that  opin- 
ion.") 


4  INTRODUCTORY NATURE  OF  QUASI  CONTRACT       (Ch.  1 

judgment  10  Julii  14  Jac.  the  plaintiff  sued  a  levari  fac.  to  the  defend- 
ant, returnable  15  Mich,  which  was  delivered  1  Aug.  whereupon  the 
defendant  levied  the  sum,  and  at  the  day  returned  that  he  had  levied 
the  same  sum,  quos  paratos  habeo,  and  yet  did  not  deliver  it  in  Court, 
per  quod,  &c.  The  defendant  quoad  i30S  pleaded  nihil  debet,  where- 
upon the  plaintiff  took  issue,  and  as  to  the  rest  he  pleads,  that  after 
the  issuing  of  the  writ,  and  before  the  return,  scil.  31  Aug.  he  did  pay 
unto  the  plaintiff  the  same  sum,  whereupon  the  plaintiff,  by  his  acquit- 
tance the  same  day  reciting  that  he  had  received  it,  did  acquit  him  of  it; 
whereupon  the  plaintiff  demurred  in  law. 

The  first  question  in  this  case  was,  whether  the  action  of  debt 
would  lie,  because  there  was  no  contract  between  the  plaintiff  and  the 
sheriff.  But  that  was  resolved  by  the  Court  that  it  would  lie;  for 
though  there  were  no  actual  contract,  yet  there  was  a  kind  of  con- 
tract in  law,  so  it  is  ex  quasi  contractu.  And  therefore  upon  damages 
recovered  in  an  action  of  trespass,  the  plaintiff  shall  have  an  action 
of  debt ;  and  by  the  same  reason  when  the  money  is  levied  by  the  sher- 
iff, so  as  the  action  ceaseth  against  tlie  defendant,  the  same  action  is 
ipso  facto  by  law  transferred  to  the  sheriff,  having  both  the  judgment 
to  make  it  a  debt,  as  before,  and  the  levy  to  make  him  answerable,  like 
unto  the  case  of  1  H.  VII  of  a  tally  delivered  to  the  customer,  as  soon 
as  money  comes  into  his  hands  he  is  made  a  debtor.  Quaere,  if  an  ac- 
tion of  debt  may  not  be  had  against  the  executor  as  a  principal  debtor, 
declaring  of  a  devastavit  by  him.  Debt  lies  by  corporations  for  the 
penalties  forfeited  upon  their  laws,  so  for  amerciaments  in  the  court 
barons,  so  11  H.  VII,  14,  for  iZ.  forfeiture,  upon  a  custom  for  pound- 
breach, &  34  H.  VI,  36  &  9  E.  IV,  50.  It  is  holden  that  upon  such 
levies  by  the  sheriff,  appearing  upon  record,  the  Court  may  award  a 
distringas,  or  the  party  may  have  a  fieri  fac.  or  elegit  against  the  sheriff 
to  levy  as  much  of  his  own,  see  Mich.  8  H.  VIII.  Reports,  Crooke  187, 
O.  N.  in  the  Exchequer,  makes  the  sheriff  debtor  to  the  King,  and  the 
debtor  himself  debtor  to  the  sheriff.  And  though  an  action  of  account 
will  lie  properly  in  this  case,  yet  the  same  case  will  many  times  bear 
both  actions,  though  the  money  be  received  per  auter  mains,  or  tlie 
like.*     *     ♦     * 


(B)  Statutory  Obligation 
WALDEN  V.  VEASELY. 

(Court  of  King's  Bench,  1626.     Noy,  75.) 

The  plaintiffs  being  sheriffs  in  Coventry,  &c.,  bring  debt  for  i7. 
and  6d.  for  their  fees  for  an  execution  of  £181.  So  that  for  their  fees 
demanded  was  12d  for  every  pound  until  £100.  and  6d.  for  every  pound 
over  and  above.    Read  the  words  of  the  statute  and  for  the  construc- 

*  The  remainder  of  the  report,  discussing  other  questions,  Is  ouiitted. 


Sec.  1)        SOURCES  AND  SCOPE  OF  QUASI  CONTRACT  5 

tion  of  it,  note  the  proviso  in  the  statute  28  Eliz.  which  does  not  ex- 
tend to  a  city  corporate.  And  note  that  statute  is  introductive  of  a 
new  law;  for  the  encouraging  of  officers  to  venture  to  do  executions. 
And  in  that  case  it  was  resolved. 

1.  That  the  sheriff  may  have  an  action  of  debt  for  his  fee,  although 
the  statute  does  not  give  any  remedy.  And  it  was  so  adjudg'd.  14 
Jac.  B.  R.  rot.  531.  Probee  and  Lumbee  Sheriffs  of  London.  And 
so  debt  by  a  parson  upon  two  E.  VII,  6.  for  not  setting  out  of  tithes. 
And  that  in  our  case  it  was  also  ruled ;  that  the  sheriff  may  refuse  to 
make  execution,  until  his  fee  be  paid  him.  But  then  see  if  a  new 
sheriff  be  made,  and  before  that  the  old  one  had  made  execution,  what 
remedy  now  hath  the  party.  And  it  seem'd  to  me,  that  he  may  have 
an  account,  or  an  action  upon  the  case,  in  nature  of  an  assump- 

And  now  judgment  was  given  for  the  plaintiff,  but  now  there  was 
much  doubt  upon  the  words  of  the  statute,  and  the  Court  divided  in 
that  point;  if  the  sheriff  shall  not  have  but  12d.  for  every  pound  to  an 
hundred,  and  after  6d.,  or  if  he  shall  have  but  6d.  for  every  pound 
when  the  execution  is  more  than  an  hundred.  Coopers  Case,  that  a 
sheriff  cannot  take  an  obligation  with  a  penalty  for  his  fee  within  the 
statute. 


ANONYMOUS. 
(Court  of  King's  Bench,  1704.     6  Mod.  26.) 

Holt,  C.  J.  If  money  be  devised  out  of  lands,  sure  the  devisee  may 
have  debt  against  the  owner  of  the  land  for  the  money,  upon  the  stat- 
ute of  32  Hen.  VIII,  c.  1,  of  Wills;  for  wherever  a  statute  enacts  any- 
thing, or  prohibits  anything,  for  the  advantage  of  any  person,  that  per- 
son shall  have  remedy  to  recover  the  advantage  given  him,  or  to  have 
satisfaction  for  the  injury  done  him  contrary  to  law  by  the  same  stat- 
ute ;  for  it  would  be  a  fine  thing  to  make  a  law  by  which  one  has  a 
right,  but  no  remedy  but  in  equity;  and  the  action  must  be  against 
the  terre-tenant.® 

5  A  portion  of  the  opinion  is  omitted. 

6  In  Shepherd  v.  Hills  (1S55)  11  Exch.  55,  65,  Parke,  B.,  said:  "There  is  no 
doubt  that  wherever  an  Act  of  Parliament  creates  a  duty  or  obligation  to  pay 
money,  an  action  will  lie  for  its  recovery,  unless  the  act  contains  some  provi- 
sion to  the  contrary." 


6  INTRODUCTORY NATURE  OF  QUASI  CONTRACT       (Ch.  I 

PROPRIETORS  OF  THE  SECOND  TURNPIKE  ROAD  v. 

TAYLOR. 

(Superior  Court  of  Judicature  of  New  Hampshire,  1834.    6  N.  H,  499.) 

Assumpsit  to  recover  certain  tolls,  alleged  to  be  due  from  the  de- 
fendant, for  passing  over  the  plaintiffs'  turnpike  road.  The  defendant 
was  going  to  Weathersfield,  in  Vermont,  to  purchase  lumber  for  his 
own  use. 

The  plaintiffs'  charter  granted  them  certain  tolls,  but  "provided  that 
nothing  in  this  act  shall  extend  to  entitle  the  said  corporation  to  de- 
mand toll  of  any  person,  who  shall  be  passing  with  his  horse  or  car- 
riage, to  or  from  public  worship,  or  with  his  horse,  team  or  cattle,  or 
on  foot,  to  or  from  any  mill,  or  on  the  common  and  ordinary  business 
of  family  concerns  within  the  same  town." 

Toll  was  demanded  of  the  defendant,  which  he  refused  to  pay,  on 
the  ground  that  the  corporation  had  no  right  to  demand  it. 

Parker,  ].''  The  defendant  does  not  bring  his  case  within  the  pro- 
viso in  the  plaintiffs'  charter.     *     *     * 

Nor  can  the  objection  to  the  form  of  action  avail  the  defendant 
It  is  well  settled  tliat  assumpsit  lies  for  tolls.  1  N.  H.  20,  Chesley  v. 
Smith;  1  D.  &  E.  616,  Seward  v.  Baker;  2  Wils.  95,  Mayor  of  Exeter 
V.  Trimlet;  3  Burr.  1402,  Mayor  of  Yarmouth  v.  Eaton;  2  Greenl. 
(Me.)  404,  Bear  Camp  River  Co.  v.  Woodman;  17  Johns.  (N.  Y.)  33, 
Newburgh  Turnpike  v.  Belknap ;  2  Pick.  (Mass.)  538,  Medf ord  Turn- 
pike V.  Torrey. 

There  was  in  the  case  no  express  promise  to  pay,  but  the  law  implies 
the  promise,  and  tlie  implication  is  founded  upon  the  defendant's  own 
act. 

Nor  can  his  refusal  to  pay  alter  the  case.  This  is  no  more  than  say- 
ing that  he  was  under  no  legal  obligation  to  pay,  and  does  not  prevent 
the  implication  of  a  promise,  it  being  found  that  he  is  legally  liable  to 
pay  toll.  If  the  right  to  receive  tolls,  and  the  duty  to  pay,  had  been 
defeated,  or  had  never  arisen,  by  reason  of  this  refusal,  then  a  promise 
to  pay  could  not  be  implied  against  the  express  dissent  of  the  defend- 
ant.   But  such  is  not  the  fact. 

The  right  to  receive  the  tolls  arises  from  the  use  of  the  road  by  the 
defendant.  3  Barn.  &  Adolph.  411,  Mayor,  &;c.,  of  Newport  v.  Saun- 
ders. And  the  duty  to  pay  is  not  the  less  imperative  because  the  de- 
fendant himself  supposed  he  was  not  liable,  and  refused  to  pay.  1 
Camp.  222,  Morris  v.  Burdett. 

The  implied  promise  arises  from  this  right  of  the  plaintiffs,  and  the 
duty  and  liability  of  the  defendant,  consequent  upon  his  use  of  the  road, 
and  is  not  dependent  upon  his  denial  or  admission  of  the  obligation. 

An   individual   purchasing  merchandise   could    surely   not   defend 

'  The  statement  of  facts  is  abridged  and  portions  of  the  opinion  are  omitted. 


Sec.  1)        SOURCES  AND  SCOPE  OF  QUASI  CONTRACT  7 

against  an  action  of  assumpsit  for  the  price,  by  showing  that  upon 
payment  being  requested,  when  the  merchandise  was  delivered  to  him, 
he  refused  to  pay.     *     *     * 
Judgment  for  the  plaintiffs. 


STEAMSHIP  CO.  v.  JOLIFFE. 

(Supreme  Court  of  the  United  States,  1864.     2  Wall.  450,  17  L..  Ed.  805.) 

Action  in  the  Justices'  Court  of  California  by  Joliffe  against  the 
Pacific  Mail  Steamship  Company  to  collect  half-pilotage.  The  court 
gave  judgment  for  $52  against  the  Steamship  Company,  This  judg- 
ment was  affirmed  by  the  County  Court.  The  Steamship  Company 
sued  out  a  writ  of  error  to  reverse  this  judgment. 

Field,  J.®  This  case  arises  upon  the  act  of  the  State  of  California, 
of  the  20th  of  May,  1861  (St.  1861,  p.  594)  entitled  "An  act  to  establish 
pilots  and  pilot  regulations  for  the  port  of  San  Francisco."  The  act 
provides  for  the  creation  of  a  Board  of  Pilot  Commissioners,  and  au- 
thorizes the  board  to  license  such  number  of  pilots  for  tlie  port  as  it 
may  deem  necessary,  and  prescribes  their  qualifications,  duties,  and 
compensation,  *  *  *  And  it  declares,  that  when  a  vessel  is  spoken 
by  a  pilot  and  his  services  are  declined,  he  shall  be  entitled  to  one-half 
pilotage  fees,  except  when  the  vessel  is  in  tow  of  a  steam-tug  outward 
bound,  in  which  case  no  charge  shall  be  made,  unless  a  pilot  be  actually 
employed. 

On  the  1st  of  November,  1861,  the  plaintiff  in  the  court  below,  the 
defendant  in  error  in  this  court,  was  a  pilot  for  the  port  of  San  Fran- 
cisco, having  been  regularly  appointed  and  licensed  by  the  board  cre- 
ated under  the  act  of  the  State.  At  that  time  the  steamship  Golden 
Gate  was  lying  in  the  port,  and  about  to  proceed  to  Panama,  carrying 
passengers  and  treasure.  *  *  *  Xo  the  master  of  this  steamship 
the  plaintiff  offered  his  services  to  pilot  the  vessel  to  sea ;  but  his  serv- 
ices were  refused,  and  to  recover  the  half-pilotage  fees  allowed  in  such 
cases  by  the  act  of  1861,  the  present  action  was  brought. 

At  the  last  term  of  this  court,  it  was  suggested  that  the  constitution- 
ality of  the  act  in  question  was  involved  in  the  decision  of  the  case ; 
and  the  court  thereupon  reserved  its  consideration  until  the  State  of 
California  could  be  represented.  The  Attorney-General  of  the  State 
has  accordingly  appeared  and  filed  a  brief  in  the  case.  Since  the  ac- 
tion of  the  court  in  this  respect,  the  legislature  of  California  has  passed 
a  new  statute  on  the  subject  of  pilots  and  pilot  regulations  for  the  port 
of  San  Francisco,  re-enacting  substantially  the  provisions  of  the  origi- 
nal act,  but  at  the  same  time  in  terms  repealing  that  act.  And  the  first 
point  made  by  the  Attorney-General  is,  that,  by  reason  of  the  repeal, 
the  present  action  cannot  be  maintained.     His  position  is,  that  as  the 

*  The  statement  of  facts  and  portions  of  the  opinion  are  omitted. 


8  INTRODUCTORY NATURE  OF  QUASI  CONTRACT       (Cll.  1 

claim  to  half -pilotage  fees  was  given  by  the  statute,  the  right  to  re- 
cover the  same  fell  with  the  repeal  of  tlie  statute ;  and  that  tliis  court 
must  dismiss  the  writ  of  error  on  that  ground. 

The  claim  to  half-pilotage  fees,  it  is  true,  was  given  by  the  statute, 
but  only  in  consideration  of  services  tendered.  The  object  of  the  reg- 
ulations established  by  the  statute,  was  to  create  a  body  of  hardy  and 
skilful  seamen,  thoroughly  acquainted  with  the  harbor,  to  pilot  vessels 
seeking  to  enter  or  depart  from  the  port,  and  thus  give  security  to  life 
and  property  exposed  to  the  dangers  of  a  difficult  navigation.  This 
object  would  be  in  a  great  degree  defeated  if  the  selection  of  a  pilot 
were  left  to  the  option  of  the  master  of  the  vessel,  or  the  exertions  of  a 
pilot  to  reach  the  vessel  in  order  to  tender  his  services  were  without  any 
remuneration.  The  experience  of  all  commercial  states  has  shown  the 
necessity,  in  order  to  create  and  maintain  an  efficient  class  of  pilots, 
of  providing  compensation,  not  only  when  the  services  tendered  are 
accepted  by  the  master  of  the  vessel,  but  also  when  they  are  declined. 
If  the  services  are  accepted,  a  contract  is  created  between  the  master 
or  owner  of  the  vessel  and  the  pilot,  the  terms  of  which,  it  is  true,  are 
fixed  by  the  statute;  but  the  transaction  is  not  less  a  contract  on  that 
account.  If  the  services  tendered  are  declined,  the  half  fees  allowed 
are  by  way  of  compensation  for  the  exertions  and  labor  made  by  the 
pilot,  and  the  expenses  and  risks  incurred  by  him  in  placing  himself  in 
a  position  to  render  the  services,  which,  in  the  majority  of  cases,  would 
be  required.  The  transaction,  in  this  latter  case,  between  the  pilot  and 
the  master  or  owners,  cannot  be  strictly  termed  a  contract,  but  it  is  a 
transaction  to  which  the  law  attaches  similar  consequences ;  it  is  a 
quasi  contract.  The  absence  of  assent  on  the  part  of  the  master  or 
owner  of  the  vessel  does  not  change  the  case.  In  that  large  class  of 
transactions  designated  in  the  law  as  implied  contracts,  the  assent  or 
convention  which  is  an  essential  ingredient  of  an  actual  contract  is 
often  wanting.  Thus,  if  a  party  obtain  the  money  of  another  by  mis- 
take, it  is  his  duty  to  refund  it,  not  from  any  agreement  on  his  part, 
but  from  the  general  obligation  to  do  justice  which  rests  upon  all  per- 
sons. In  such  case  the  party  makes  no  promise  on  the  subject;  but  the 
law,  "consulting  the  interests  of  morality,"  implies  one ;  and  the  liability 
thus  arising  is  said  to  be  a  liability  upon  an  implied  contract.  Argenti 
V.  San  Francisco,  16  Cal.  282;  Maine  on  Ancient  Law,  344.  The  claim 
for  half-pilotage  fees  stands  upon  substantially  similar  grounds. 

"There  are  many  cases,"  says  Mr.  Justice  Curtis,  speaking  for  this 
court,  "in  which  an  offer  to  perform,  accompanied  by  present  ability 
to  perform,  is  deemed  by  lav/  equivalent  to  performance.  The  laws 
of  commercial  states  and  countries  have  made  an  offer  of  pilotage  serv- 
ices one  of  those  cases."  Cooley  v.  Board  of  Wardens  of  Port  of  Phil- 
adelphia, 12  How.  312,  13  L.  Ed.  996. 

The  claim  of  the  plaintiff  below  for  half-pilotage  fees,  resting  upon 
a  transaction  regarded  by  the  law  as  a  quasi  contract,  there  is  no  just 
ground  for  the  position  that  it  fell  witli  the  repeal  of  the  statute  under 


Sec.  1)        SOURCES  AND  SCOPE  OF  QUASI  CONTRACT  9 

which  the  transaction  was  had.  When  a  right  has  arisen  upon  a  con- 
tract, or  a  transaction  in  the  nature  of  a  contract  authorized  by  statute, 
and  has  been  so  far  perfected  that  nothing  remains  to  be  done  by  the 
party  asserting  it,  the  repeal  of  the  statute  does  not  affect  it,  or  an  ac- 
tion for  its  enforcement.  It  has  become  a  vested  right  which  stands 
independent  of  the  statute.  And  such  is  the  position  of  the  claim  of 
the  plaintiff  below  in  the  present  action :  the  pilotage  services  had  been 
tendered  by  him ;  his  claim  to  the  compensation  prescribed  by  the  stat- 
ute was  then  perfect,  and  the  liability  of  the  master  or  owner  of  the 
vessel  had  become  fixed."  *  *  * 
Judgment  affirmed. 


(C)  Obligation  Created  by  a  Record 

CRAWFORD  V.  WHITTAL. 
(Court  of  King's  Bench,  1773.     1  Doug.  4,  note.) 

It  was  an  action  of  indebitatus  assumpsit,  brought  by  Crawford  as 
administrator  of  one  Hargrave,  in  which  he  declared  that  the  defend- 
ant was  indebted  to  him,  as  administrator,  "in  the  sum  of  £747  sterling 
for  6904  rupees  10  annas  and  9  pice  of  current  money  of  Bengal  in  the 
East  Indies,  by  a  certain  judgment  of  the  Honourable  The  Mayor's 
Court  at  Calcutta,  at  Ft.  William  in  Bengal  aforesaid,  holden  before, 
&c.,  before  that  time,  viz.,  on  &c.,  adjudged  and  awarded  to  be  paid  by 
the  said  defendant  to  the  said  plaintiff,  as  administrator  as  aforesaid, 
for  a  certain  demand  of  the  said  plaintiff,  as  administrator  as  aforesaid, 
sued  and  prosecuted  in  the  same  court  of  5801  rupees,  &c.,  together 
with  interest  due  thereon  from  &c.  till  &c.  at  the  rate  of  &c.  being  &c. 
current  money  of  Bengal  aforesaid,  and  costs  of  suit,  being  &c.  making 
together  the  said  sum  of  6904  rupees  &c.,  which  said  judgment  is  m 
force  and  unsatisfied ;  and  which  said  6904  rupees,  &c.  at  the  time  of 
recovering  the  said  judgment,  were  and  yet,  are  of  the  value  of  the  said 
i747;  and  being  so  indebted,  the  defendant,  afterwards,  in  considera- 
tion of  the  premises,  undertook  to  pay."  There  were  other  counts  to 
the  like  effect ;  some  of  them  stating  the  sum  only  in  East  India  money, 
— some  varying  the  amount, — and  some  stating  the  judgment,  without 
adding  "for  a  certain  demand  &c." 

The  defendant  demurred  specially  to  this  declaration  and  shewed 
for  cause  that  there  was  no  profert  of  the  letters  of  administration. 
It  was  argued,  on  Tuesday,  the  9th  of  February  by  Fearnley  for  the 
defendant,  and  Mansfield  for  the  plaintiff.  Two  points  were  made 
for  t?he  defendant:    1.  That  assigned  for  cause  of  demurrer.     2.  An 

9  The  majority  of  the  court  held,  further :  (1)  That  the  act  of  1864  did  not 
repeal  the  original  act  of  1861 ;  and  (2)  tliat  the  act  of  1861  was  not  uncon- 
stitutional, as  being  in  conflict  witli  federal  legislation  on  this  subject.  Miller, 
Wayne,  and  Clifford,  JJ.,  dissented  on  both  of  these  points. 


10  INTRODUCTORY NATURE  OF  QUASI  CONTRACT       (Ch.  1 

objection  to  the  substance  of  the  declaration,  viz.,  that  the  ground  of 
the  judgment  abroad,  and  the  cause  of  action  there  ought  to  have  been 
shown.  The  cases  of  Duplein  v.  De  Roven,  2  Vern.  540,  and  Bowles  v. 
Bradshaw,  M.  22  Geo.  II,  Mss.  (which  was  indebitatus  assumpsit  on  a 
judgment  in  the  Court  of  Exchequer  in  Ireland)  were  cited. 

As  to  the  first  point,  the  court  said  that  profert  of  the  letters  of  ad- 
ministration was  unnecessary;  because  in  this  action  the  plaintiff  had 
no  occasion  to  have  described  himself  as  administrator. 

Second  point.  Aston,  J.  The  declaration  is  sufficient;  we  are  not 
to  suppose  it  an  unlawful  debt. 

AsHHURST,  J.  I  have  never  seen  this  doubted;  I  have  often  known 
assumpsit  brought  on  judgments  in  foreign  courts;  the  judgment  is  a 
sufficient  consideration  to  support  the  implied  promise. 

Judgment  for  the  plaintiff.^" 

10  Either  debt  or  assumpsit  will  lie  upon  a  judgment  of  a  domestic  court 
not  of  record,  Williams  v.  Jones  (1845)  13  Mees.  &  W.  627 ;  or  upon  a  judgnieut 
of  a  court  of  a  foreign  country,  Mellin  v.  Horlich  (C.  C.  18S7)  31  Fed.  865. 

In  Williams  v.  Jones,  supra,  Parke,  B.,  said :  "The  principle  on  which  this 
action  is  founded  is  that  where  a  court  of  competent  jurisdiction  has  adjudi- 
cated a  certain  sum  to  be  due  from  one  person  to  another,  a  legal  obligation 
arises  to  pay  that  sum,  on  which  an  action  of  debt  to  enforce  the  judgment 
may  be  maintained.  It  is  in  this  way  that  the  judgments  of  foreign  and 
colonial  courts  are  supported  and  enforced,  and  the  same  rule  applies  to  in- 
ferior courts  in  this  country,  and  applies  equally  whether  they  be  courts  of 
record  or  not." 

Upon  a  judgment  of  a  domestic  court  of  record  assumpsit  does  not  lie  but 
debt  only.  Woods  v.  Pettis  (1832)  4  Vt.  556.  '-We  are  sensible  there  are 
many  cases  where  either  debt  or  assumpsit  may  be  brought;  but  when  the 
claim  is  wholly  founded  upon  a  matter  of  record  and  exists  only  as  a  matter 
of  record,  the  action  to  recover  it  must  be  debt  and  cannot  be  assumpsit." 

The  same  is  true  in  this  country  as  to  a  judgment  of  a  court  of  record  of 
a  sister  state.  Assumpsit  does  not  lie,  but  debt  onl.v.  This  is  by  reason  of 
the  "full  faith  and  credit''  clause  of  the  United  States  Constitution,  article  4, 
see.  1.  Andrews  v,  Montgomery  (1821)  19  Johns.  (N,  Y.)  162,  10  Am.  Dec.  213; 
McKim  V.  Odom  (1835)  12  RIe.  94. 

A  decree  of  a  court  of  equity  of  another  state  or  country  for  the  uncondi- 
tional payment  of  a  sum  of  money  may  also  be  enforced  bv  action  of  debt, 
Pennington  v.  Gibson  (1853)  16  How.  65,  14  L.  Ed.  847;  Mutual  Life  Ins.  Co. 
of  New  York  v.  Newton  (1888)  50  N.  J.  Law,  571,  14  Atl.  756. 

As  to  a  decree  for  payment  of  alimony,  see  Wagner  v.  Wagner  (1904)  26  R. 
I.  27,  57  Atl.  1058,  65  L.  R.  A.  816,  3  Ann.  Cas.  578. 

See  also  15  Columbia  Law  Review,  237  et  seq. ;  Dubois  v.  Seymour  (1907) 
152  Fed.  600,  81  C.  C.  A.  590,  11  Ann.  Cas.  658. 

Recognizance.— "A  recognizance  is  defined  to  be  'an  obligation  of  record, 
which  a  wan  enters  into  before  some  court  of  record  or  magistrate  duly  au- 
tliorized,  with  condition  to  do  some  particular  act;  as  to  appear  at  the  assizes, 
to  lieep  the  peace,  to  pay  a  debt,  or  the  lil^e.'  2  Bl.  Com.  341 ;  2  Tidd's  Pr. 
1083,  Phil.  Ed.  1840.  It  does  not,  like  a  bond,  create  a  new  debt,  but  is  the 
acknowledgment  of  a  precedent  one,  which,  being  carried  into  record,  becomes 
binding  and  conclusive  on  the  party.  2  Bl.  Com.  supra;  2  Shep.  Touch,  by 
Preston,  354,  N."  Beardsley,  J.,  in  People  v.  Kane  (1847)  4  Denio  (N.  Y.)  530, 
534.  The  case  contains  a  valuable  discussion  of  the  history,  nature  and*  effect 
of  a  recognizance. 

See,  also.  Gay  v.  State  (1871)  7  Kan.  394 ;  State  v.  McGuire  (1889)  42  Minn. 
27,  43  N.  W.  687. 


Sec.  1)  SOURCES   AND   SCOPE  OF  QUASI   CONTRACT  11 

II,  Obligation  to  Account — Unjust  Enrichment  ** 

ROBSERT  V.  ANDREWS. 

(Court  of  Queen's  Bench,  1588.    Cro.  Eliz.  82.) 

If  a  person  receives  money  by  the  hands  of  a  servant  for  the  relief 
of  Others,  he  may  be  charged  as  having  so  received  it,  in  an  action 
of  account,  tho'  no  agreement  was  made  that  he  should  ac- 
count."    *     *     * 


HEWER  V.  BARTHOLOMEW. 
(Court  of  Queen's  Bencb,  1598.     Cro.  Eliz.  614.) 

Accompt,  supposing  that  he  received  ilOO.  by  the  hands  of  John 
Coventry.  The  defendant  pleaded  that  he  did  not  receive  anything  by 
the  hands  of  John  Coventry  to  render  account,  etc. ;  and  thereupon 
they  were  at  issue.  The  jury  found  that  Bartholomew  paid  that  ilOO. 
to  Hewer  the  plaintiff  in  redemption  of  a  mortgage  ;  and  he  commanded 
his  servant  to  put  it  in  his  closet;  who  did  so.  Afterwards  Bartholo- 
mew demanded  of  the  plaintiff  certain  evidences  and  bonds;  which  he 
refused  to  deliver.  The  defendant  then  required,  that  he  might  have 
his  money  again,  which  he  then  had  paid.  The  plaintiff  thereupon  com- 
manded his  servant,  John  Coventry,  that  he  should  fetch  back  the 
said  £100.  to  redeliver  to  the  aforesaid  J.  Bartholomew  the  said  £100. 
by  him  paid ;  and  that  the  said  John  Coventry  did  fetch  again  the  said 
money,  and  poured  it  forth  upon  the  table  of  the  said  J.  Bartholomew 
with  this  intention,  that  the  said  J.  Bartholomew  should  receive  back 
in  the  presence  of  the  plaintiff  the  £100.  aforesaid,  which  the  said  J. 
Bartholomew  to  the  said  plaintiff  had  paid :  and  that  the  plaintiff  then 
and  there  did  will  the  defendant  to  receive  the  aforesaid  £100.  which 
had  been  paid  to  the  said  defendant  by  the  aforesaid  plaintiff  which 
£100.  said  defendant  then  received  and  carried  away.  And  thus  on 
these  facts,  etc. 

And  All  the  Court  resolved,^'  that  this  payment  was  a  good  dis- 
charge of  the  mortgage ;  and  although  he  afterwards  required  it  again, 
as  his  own  money,  yet  it  shall  not  avoid  that  which  Avas  absolutely  paid  ; 
but  the  mortgage  remains  absolutely  discharged;   and  the  monies  were 

11  "The  equitable  principle  which  lies  at  the  foundation  of  the  great  bulk 
of  Quasi  Contracts,  namely,  tbat  one  person  shall  not  uujustly  enrich  himsell: 
at  the  expense  of  another,  has  established  itself  very  gradually  in  the  Com- 
mon Law.  *  *  *  The  most  fruitful  manifestations  of  tliis  doctrine  in  the 
early  law  are  to  be  found  in  the  action  of  Account."  Ames,  The  History  of 
Assumpsit,  2  Harvard  Law  Rev.  1,  53,  at  page  6G  (3  Select  Essays  in  Anglo- 
American  Legal  History,  259,  295.) 

12  A  portion  of  the  case  is  omitted. 

ISA  portion  of  the  report,  printed  in  Latin,  is  here  translated.  Portions 
of  the  opinions,  dealing  with  another  point,  are  omitted. 


12  INTRODUCTORY NATURE  OF  QUASI  CONTRACT       (Ch.  1 

the  plaintiff's  own  monies.  And  although  he  delivered  them  to  the 
defendant  as  his  own,  not  knowing  the  law  therein,  supposing  it  to  be 
no  payment;  yet  in  regard  he  did  not  give  it  otherwise,  nor  upon  other 
consideration,  the  defendant  received  them  as  the  plaintiff's  money, 
and  is  accountable  for  them. 

Secondly,  Popham  and  Gawdy  held,  that  this  was  not  any  receipt 
by  the  hands  of  J.  Coventry  but  by  the  hands  of  plaintiff  himself.  *  *  * 

Fenner  held  the  contrary  in  this  point.     *     *     * 

And  Clench  doubted.     Et  adjournatur. 

But  afterwards  the  plaintiff  discontinued  his  suit,  and  brought  a  new 
action,  supposing  the  receipt  by  his  own  hands. 


EARL  OF  LINCOLN  v.  TOPCLIFF. 

(Court  of  Queen's  Bench,  1598.     Cro.  Eliz.  644.) 

Debt  upon  a  bill  ensealed,  whereby  the  defendant  acknowledged  that 
he  had  received  of  the  plaintiff  £7.  ad  emendum  a  pair  of  bellows,  and 
other  things  to  the  use  of  the  Earl ;  and  avers,  that  he  had  not  bought 
the  things,  nor  paid  the  money.  And  thereupon  the  defendant  de- 
murred ;  for  he  objected  that  the  plaintiff  in  this  case  ought  to  have  had 
accompt  and  not  debt. 

But  All  the  Justices  held,  that  he  might  have  either  the  one  or  the 
other,  at  his  election.^*  Wherefore,  without  argument,  it  was  adjudged 
for  the  plaintiff." 

1*  "Attempts  were  made  at  a  comparatively  recent  period  to  bring  debt 
against  the  receiver ;  but  these  attempts  were  unsuccessful.  The  first  case 
in  which  an  action  of  debt  in  such  situation  was  allowed  was  in  the  time 
of  Henry  VIII  (Y.  B.  19  Hen.  VIII,  3,  15),  and  from  that  time  on  it  has  been 
perfectly  settled  that  the  plaintiff  has  an  option  to  bring  either  debt  or 
account.  Whenever  you  could  have  debt  you  could  have  indebitatus  assump- 
sit, and  this  is  the  origin  of  the  count  for  money  had  and  received  for  the  use 
of  the  plaintiff."    Ames,  Lectures  on  Legal  History,  118,  119,  Account. 

"It  is  sometimes  asserted  that  debt,  and  later  indebitatus  assumpsit,  su- 
perseded account.  Such  an  assertion  rests  upon  a  confusion  of  ideas ;  for  a 
debt  was  necessary  to  support  either  of  those  actions,  and  obviously  an  ob- 
ligation to  account  could  not  constitute  a  debt.  Circumstances  might  of  course 
arise  in  which  the  receiver  had  so  dealt  with  the  property  (e.  g.  by  converting 
it  to  his  own  use)  that  the  obligation  to  account  could  be  treated  as  having 
been  converted  into  a  debt;  in  such  ease  the  plaintiff  would  have  the  option 
of  holding  the  receiver  to  accoimt  or  of  waiving  the  account  and  bringing 
debt."  4  Oxford  Studies  in  Social  &  Legal  History — Contract  in  Early  Eng- 
lish Equity,  p.  15,  by  W.  T.  Barbour. 

15  In  Core's  Case  (1573)  Dyer,  20a,  the  plaintiff  brought  debt  against  the 
administrator  of  Gray  Woddye,  alleging  that  the  said  Woddye  received  of 
plaintiff  £'20  to  buy  French  pi-unes  at  Rouen  and  ship  the  same  to  plaintiff  in 
London,  but  that  Woddye  had  not  bestowed  the  money  in  prunes.  Plaintiff 
had  a  verdict,  and  defendant  alleged  in  arrest  of  judgment  that  debt  would 
not  lie  against  the  testator,  but  only  account.  Held,  that  "it  is  in  the  election 
of  the  biiilor  to  have  an  action  of  debt  or  account  in  such  case  against  the 
testator.  *  *  ♦  And  so  it  shall  be  reasonable  that  the  action  lies,  or  other- 
wise plaintiff  will  be  without  remedy,  and  defendant  might  retain  £20.  in  his 
hands,  which  would  be  unreasonable.    For  it  is  clear  law  that  no  action  of 


Sec.  1)  SOURCES  AND   SCOPE   OF   QUASI   CONTRACT  13 

BONNEL  V.  FOULKE. 

(Court  of  King's  Bench,  1657.     2  Sid.  4.) 

The  plaintiff  being  one  of  the  colemeeters  of  London,  for  which  he 
was  to  pay  £80.  per  annum,  the  special  matter  was  found  to  be  that 
by  divers  charters  the  Kings  of  England  had  granted  and  confirmed  to 
the  Mayor  and  Aldermen  of  London  the  measuring  of  cloths  as  well 
woolen,  as  linen,  silks,  etc.,  and  the  weighing  and  measuring  of  fruit, 
fish,  'y)als,  etc.,  both  in  the  port  of  London  and  on  the  river  Thames 
from  Stanes-bridge  to  London-bridge  and  from  thence  to  Medway 
near  the  sea,  as  also  upon  the  river  Medway,  of  all  such  goods  landed 
upon  the  banks  within  the  said  space  before  limited ;  and  it  was  found 
that  in  ancient  times  but  four  colemeeters,  and  afterwards  six  were 
appointed,  and  afterwards  eight.  And  in  the  third  year  of  King 
James  it  was  enacted  by  the  Common  Council  of  London  (which  has 
as  much  power  within  the  walls  of  London  as  an  act  of  Parliament 
without)  that  there  should  be  ten  colemeeters,  eight  of  whom  should 
pay  their  rent  to  the  Lord  Mayor  for  the  time  being,  for  the  mainte- 
nance of  his  honorable  house,  and  the  other  two  to  the  Chamberlain  of 
London ;  and  the  plaintiff  was  one  of  which  two  who  should  pay  rent 
to  the  Chamberlain  of  London,  as  was  plainly  proven.  And  about  the 
year  1652  (as  I  remember)  when  the  defendant  was  Mayor,  he  de- 
manded of  the  plaintiff  said  rent,  which  he  paid  quarterly,  and  holds 
several  receipts  to  this  effect :  "Received  of  J.  B.  one  of  the  colemeeters 
of  the  city  of  London,  the  sum  of  £20.  for  his  rent,  by  me,  J.  F.,  Lord 
Mayor,  etc."  And  then  the  rent  was  demanded  of  the  said  plaintiff 
by  the  Chamberlain  of  the  city  and  he  paid  to  the  Chamberlain  the 
said  rent  and  therefore  he  brought  assumpsit,  namely  indebitatus  as- 
sumpsit, against  the  defendant,  Foulke. 

And  ADJUDGED  ^^  that  action  well  lies. 

As  if  one  comes  to  me  and  says,  "Pay  me  my  rent,  1  am  your  land- 
lord" and  I  reply,  "Give  me  your  receipt  and  you  shall  have  it."  And 
so  I  pay  him,  and  then  another  who  has  a  right  (to  the  rent)  comes 
and  demands  it  and  I  pay  him,  I  can  have  indebitatus  assumpsit  against 
him  who  gave  me  the  first  receipt. 

And  if  I  pay  monies  in  satisfaction  of  a  duty  and  he  to  whom  it  is 
paid  has  no  title  to  receive  it,  and  so  the  duty  is  not  satisfied,  he  to 
whom  it  is  paid  is  indebted  to  me,  and  therefore  I  may  maintain  action 
against  him  just  as  well  as  when  one  who  has  no  title  demands 
rent.     *     *     * 

account  lies  against  an  executor  or  administrator,  for  the  law  does  not  intend 
them  to  have  been  privy  to  the  account;  wlierefore  it  seemed  that  the  judg- 
ment was  good,  and  affirmable,  and  so  it  was  adjudged." 

Compare  Manning  v.  Fallon  (N.  J.  Sup.  1J)07)  66  Atl.  903. 

16  The  statement  of  facts  is  abridged,  and  a  portion  of  the  opinion,  discuss- 
ing another  point,  is  omitted.  Most  of  the  original  report  is  in  Norman 
Trench.  The  translation  here  made  closely  follows  tliat  found  in  1  Keener's 
Cases  on  Quasi  Contracts,  70. 


14  INTRODUCTORY — NATURE  OF  QUASI  CONTRACT       (Ch.  1 

ARRIS  V.  STUKELY. 

(Court  of  Exchequer,  1677.     2  Mod.  200.) 

Indebitatus  assumpsit  for  i200.  in  money  had  and  received  to  the 
use  of  the  plaintiffs  ;  upon  non  assumpsit  pleaded,  the  jury  find  a  special 
verdict  to  this  effect,  viz.  that  King  Charles  the  Second  did,  on  the 
17th  day  of  August,  in  the  12th  year  of  his  reign,  by  his  letters  patent 
under  the  Great  Seal,  grant  to  the  defendant  and  another  the  office  of 
comptroller  of  the  customs  at  the  port  of  Exeter  durante  bene  placito ; 
that  the  other  person  died;  and  that  the  king  afterwards,  by  other 
letters  patents  bearing  date  the  first  day  of  May  in  the  twenty-first 
year  of  his  reign,  did  grant  said  office  to  the  plaintiffs,  which  was  two 
years  before  this  action  brought ;  and  that  the  defendant  still  and  for 
seven  years  past  had  exercised  the  same  under  pretense  of  a  right  by 
survivalship,  and  received  the  profits  thereof.  But  whether  upon  the 
whole  matter  the  defendant  made  any  such  promise  as  in  the  declara- 
tion, they  did  not  know;  et  petunt  advisamentum  Curiae  in  prsemissis; 
and  if  upon  the  matter  so  found  the  Court  shall  be  of  opinion  that  the 
defendant  made  such  promise,  then  they  say  that  he  did  make  such 
promise,  and  assess  damages  occasione  praemissorum  in  narratione 
mentionat.  ad  ilOO.  and  costs  to  53s.  and  4d.  &c. 

Winnington,  Solicitor  General,  argued,  that  the  first  patent  was  de- 
termined by  the  death  of  one  of  the  patentees,  and  then  the  second 
patent  takes  effect,  and  so  the  plaintiffs  have  a  good  title  ;  for  there  shall 
be  no  survivalship  of  an  office  of  trust,  no  not  if  the  office  had  been 
granted  to  two  for  their  lives,  if  it  be  not  said  "to  the  survivor  of 
them,"  11  Co.  34,  Auditor  Curie's  Case. 

And  of  that  opinion  was  the;  Court  clearly.^^     *     ♦     * 

Second  point. — Pollexfen,  for  the  defendant.  A  general  indebitatus 
assumpsit  will  not  lie  here  for  want  of  a  privity,  and  because  there  is 
no  contract.  It  is  only  a  tort,  a  disseisin,  and  the  plaintiff  might  have 
brought  an  assise  for  this  office,  which  lies  at  the  common  law ;  and  so 
it  hath  been  adjudged  in  Jehu  Webb's  Case,  8  Co.  4,  which  is  also 
given  by  the  Statute  of  Westminster  II,  cap.  25,  for  a  profit  a  prendre 
in  alieno  solo.  The  plaintiff  might  have  brought  an  action  on  the  case 
against  the  defendant  for  disturbing  of  him  in  his  office ;  and  that  had 
been  good,  because  it  had  been  grounded  on  the  wrong.  In  this  case 
the  defendant  takes  the  profits  against  the  will  of  the  plaintiff,  and  so 
there  is  no  contract;  but  if  he  had  received  tliem  by  the  consent  of  the 
plaintiff,  yet  this  action  would  not  lie  for  want  of  privity.  It  is  true, 
in  the  case  of  the  Ku\g,  where  his  rents  are  wrongfully  received,  the 
pa;"ty  may  be  charged  to  give  an  account  as  bailiff;  so  also  may  the 
executors  of  his  accountant,  because  the  law  creates  a  privity ;  but  it 
is  otherwise  in  the  case  of  a  common  person,   10  Co.  114b;  11  Co. 

17  Portions  of  the  opinion,  discussing  other  matters,  together  with  the  argu- 
ments of  counsel  thereon,  are  omitted. 


Sec.  1)  SOURCES  AND   SCOPE   OF  QUASI   CONTRACT  15 

90b ;  ^®  because  in  all  actions  of  debt  there  must  be  a  contract,  or  quasi 
ex  contractu  ;  and  therefore  where  judgment  was  had,  and  thereupon  an 
elegit,  and  the  sheriff  returned  that  he  had  appraised  the  goods,  and 
extended  such  lands,  which  he  delivered  to  the  plaintiff,  ubi  revera  he 
did  not,  per  quod  actio  accrevit,  which  was  an  action  of  debt,  it  was 
adjudged,  that  it  would  not  lie,  because  the  sheriff  had  not  returned 
that  he  meddled  with  the  goods,  or  with  the  value  of  them ;  and  there- 
fore for  want  of  certainty  how  much  to  charge  him  with,  this  action 
would  not  lie,  but  an  action  on  the  case  for  a  false  return ;  but  if  he 
had  returned  the  goods  sold  for  so  much  money  certain  which  he  had 
delivered,  then  an  action  of  debt  would  lie;  for  though  it  is  not  a  con- 
tract, it  is  quasi  ex  contractu.  Hob.  206. 

Winnington,  Solicitor  General,  and  Sawyer,  contra,  said,  that  an 
indebitatus  assumpsit  would  lie  here ;  for  where  one  receives  my  rent, 
I  may  charge  him  as  bailiff  or  receiver ;  or  if  any  one  receive  my  money 
without  my  order,  though  it  is  a  tort,  yet  an  indebitatus  will  lie,  because 
by  reason  of  the  money  the  law  creates  a  promise;  and  the  action  is 
not  grounded  on  the  tort,  but  on  the  receipt  of  the  profits  in  this  case. 

Thk  Court.  An  indebitatus  assumpsit  will  lie  for  rent  received 
by  one  who  pretends  a  title ;  for  in  such  case  an  account  will  lie.  Wher- 
ever the  plaintiff  may  have  an  account,  an  indebitatus  will  lie.     *     *     * 

And,  in  the  Michaelmas  term  following,  the  Court  gave  judgment 
for  the  plaintiff/" 


LAMINE  V.  DORRELL. 

(Court  of  King's  Bench,  1705.     2  Ld.  Kaym.  1216.) 

In  an  indebitatus  assumpsit  for  money  received  by  the  defendant  to 
the  use  of  the  plaintiff  as  administrator  of  J.  S.  on  non  assumpsit 
pleaded,  upon  evidence  the  case  appeared  to  be,  that  J.  S.  died  intes- 
tate possessed  of  certain  Irish  debentures ;  and  the  defendant  pretend- 
ing to  a  right  to  be  administrator,  got  administration  granted  to  him, 
and  by  that  means  got  these  debentures  into  his  hands,  and  disposed  of 

18  See  Ames'  Lectures  on  Legal  History,  120,  121,  "Account." 

19  Accord:  Howard  v.  Wood  (167G)  T.  Jones,  126.  Albright  v.  Sandoval 
(1910)  216  U.  S.  331,  340,  30  Sup.  Ct.  318,  320,  54  L.  Ed.  502.  ("The  weight  of 
authority  is  to  the  effect  that  a  de  jure  officer  may  recover  from  the  de  facto 
officer  the  emoluments  of  the  office,  less  the  reasonable  expenses  incurred  in 
earning  such  fees,  when  the  de  facto  officer  entered  into  the  office  in  good 
faith  and  under  color  of  title.") 

Contra:  Stuhr  v.  Curran  (18S2)  44  N,  J.  Law,  181,  48  Am.  Rep.  353  (able 
dissenting  opinion  by  Beasley,  C.  J.). 

IS'o  recovery  is  allowed  for  mere  gratuities  received  by  defendant  while  he 
was  usurping  plaintiff's  office.     Boynton  v.  Didsworth  (1706)  6  Term  Rop.  GSl. 

In  Asher  v.  Wallis  (1708)  11  Mod.  146,  a  man,  having  a  wife  in  England, 
went  to  Jamaica  and  there  married  the  plaintiff  and  collected  the  rents  of  her 
land.  She  afterwards  discovered  that  he  had  another  wife  living,  and  sued 
him  in  indebitatus  assumpsit  for  the  rents  thus  collected.  The  court  held  that 
the  action  would  lie. 


16  INTRODUCTORY NATURE  OP  QUASI  CONTRACT       (Ch.  1 

them :  then  the  defendant's  administration  was  repealed,  and  adminis- 
tration granted  to  the  plaintiff,  and  he  brought  this  action  against  the 
defendant  for  tlie  money  he  sold  the  debentures  for.  And  it  being  ob- 
jected upon  the  evidence,  that  this  action  would  not  lie,  because  the 
defendant  sold  the  debentures  as  one  that  claimed  a  title  and  interest  in 
them,  and  therefore  could  not  be  said  to  receive  the  money  for  the  use 
of  the  plaintiff,  which  indeed  he  received  to  his  own  use ;  but  the  plain- 
tiff ought  to  have  brought  trover  or  detinue  for  the  debentures :  the 
point  was  saved  to  the  defendant,  and  now  the  court  was  moved,  and 
the  same-objection  made. 

Powell,  Justice.  It  is  clear  the  plaintiff  might  have  maintained 
detinue  or  trover  for  the  debentures ;  but  when  the  act  that  is  done 
is  in  its  nature  tortious,  it  is  hard  to  turn  that  into  a  contract,  and 
against  the  reason  of  assumpsits.  But  the  plaintiff  may  dispense  with 
the  wrong,  and  suppose  the  sale  made  by  his  consent,  and  bring  an 
action  for  the  money  they  were  sold  for,  as  money  received  to  his  use. 
It  has  been  carried  thus  far  already.  Howard  and  Wood's  case  [2 
Lev.  245,  T.  Jones,  126]  is  as  far:  there  the  title  of  the  office  was 
tried  in  an  action  for  the  profits. 

Holt,  Chief  Justice.  These  actions  have  crept  in  by  degrees.  I  re- 
member, in  the  case  of  Mr.  Aston,  in  a  dispute  about  the  title  to  the 
office  of  clerk  of  the  papers  in  this  court,  there  were  great  counsel 
consulted  with ;  and  Sir  William  Jones  and  Mr.  Saunders  were  of 
opinion,  an  indebitatus  assumpsit  would  not  lie,  upon  meeting  and  con- 
ferring together,  and  great  consideration.  If  two  men  reckon  together, 
and  one  overpays  the  other,  the  proper  remedy  in  that  case  is  a  special 
action  for  the  money  overpaid,  or  an  account ;  and  yet  in  that  case  you 
constantly  bring  an  indebitatus  assumpsit  for  money  had  and  received 
to  the  plaintiff's  use.  Suppose  a  person  pretends  to  be  guardian  in 
socage,  and  enters  into  the  land  of  the  infant,  and  takes  the  profits, 
though  he  is  not  rightful  guardian,  yet  an  action  of  account  will  lie 
against  him.  So  the  defendant  in  this  case  pretending  to  receive  the 
money  the  debentures  were  sold  for  in  the  right  of  the  intestate,  why 
should  he  not  be  answerable  for  it  to  the  intestate's  administrator? 
If  an  action  of  trover  should  be  brought  by  the  plaintiff  for  these  de- 
bentures after  judgment  in  this  indebitatus  assumpsit,  he  may  plead  this 
recovery  in  bar  of  tlie  action  of  trover,  in  the  same  manner,  as  it 
would  have  been  a  good  plea  in  bar  for  the  defendant  to  have  pleaded 
to  the  action  of  trover,  that  he  sold  tlie  debentures,  and  paid  to  the 
plaintiff  in  satisfaction.  But  it  may  be  a  doubt  if  this  recovery  can  be 
pleaded  before  execution.  This  recovery  may  be  given  in  evidence 
upon  not  guilty  in  the  action  of  trover,  because  by  this  action  the  plain- 
tiff makes  and  affirms  tlie  act  of  the  defendant  in  the  sale  of  the  de- 
bentures to  be  lawful,  and  consequently  the  sale  of  them  is  no  con- 
version. 

Afterwards  the  last  day  of  the  term,  upon  motion  to  the  court,  they 
gave  judgment  for  the  plaintiff".    And  Holt  said,  that  he  could  not  see 


Sec.  1)        SOURCES  AND  SCOPE  OF  QUASI  CONTRACT  17 

how  it  differed  from  an  indebitatus  assumpsit  for  the  profits  of  an  of- 
fice by  a  rightful  officer  against  a  wrongful,  as  money  had  and  re- 
ceived by  the  wrongful  officer  to  the  use  of  the  rightful. 


MOSES  V.  MACFERLAN.20 

(Court  of  King's  Bench,  1760.     2  Burr.  1005.) 

Lord  Mansfield  delivered  the  resolution  of  the  Court  in  this  case; 
which  stood  for  their  opinion,  "Whetlier  the  plaintiff  could  recover 
against  the  defendant,  in  the  present  form  of  action,  (an  action  upon 
the  case  for  money  had  and  received  to  the  plaintiff's  use ;)  or  whether 
he  should  be  obliged  to  bring  a  special  action  upon  the  contract  and 
agreement  between  them." 

It  was  an  action  upon  the  case,  brought  in  this  Court,  by  the  now 
plaintiff,  Moses,  against  the  now  defendant,  Macferlan,  (heretofore 
plaintiff  in  the  Court  of  Conscience,  against  the  same  Moses  now  plain- 
tiff here,)  for  money  had  and  received  to  the  use  of  Moses  the  now 
plaintiff  in  this  Court. 

The  case,  as  it  came  out  upon  evidence  and  without  dispute,  at  nisi 
prius  before  Lord  Mansfield  at  Guildhal!,  was  as  follows.  It  was  clear- 
ly proved,  that  the  now  plaintiff,  Moses,  had  indorsed  to  the  now  defend- 
ant, Macferlan,  four  several  promissory  notes  made  to  Moses  himself 
by  one  Chapman  Jacob,  for  30s.  each,  for  value  received,  bearing  date 
7th  November,  1758;  and  that  this  was  done  in  order  to  enable  the  now 
defendant  Macferlan  to  recover  the  money  in  his  own  name,  against 
Chapman  Jacob.  But  previous  to  the  now  plaintiff's  indorsing  these 
notes,  Macferlan  assured  him  "that  such  his  indorsement  should  be  of 
no  prejudice  to  him :"  and  there  was  an  agreement  signed  by  Macfer- 
lan, whereby  he  (amongst  other  things)  expressly  agreed  "that  Moses 
should  not  be  liable  to  the  payment  of  the  money,  or  any  part  of  it: 
and  that  he  should  not  be  prejudiced,  or  be  put  to  any  costs,  or  any 
way  suffer,  by  reason  of  such  his  indorsement."  Notwithstanding 
which  express  condition  and  agreement,  and  contrary  thereto,  the  pres- 
ent defendant  Macferlan  summoned  the  present  plaintiff  Moses  into 
the  Court  of  Conscience,  upon  each  of  these  4  notes,  as  the  indont-^.r 
thereof  respectively,  by  4  separate  summonses.  Whereupon  Moses, 
(by  one  Smith,  who  attended  the  Court  of  Conscience  at  their  second 
Court,  as  Solicitor  for  him  and  on  his  behalf,)  tendered  the  said  in- 
demnity to  the  Court  of  Conscience,  upon  the  first  of  the  said  four 
causes ;  and  offered  to  give  evidence  of  it  and  of  the  said  agreement, 

20  "Although  there  are  earlier  cases  in  which  obligations  which  would  now 
be  recognized  as  quasi  contractual  were  enforced,  I-ord  Mansfield's  opinion 
in  the  case  of  Moses  v.  Macferlan,  decided  by  the  Court  of  King's  Bench  in 
1760,  may  be  said  to  mark  the  emergence  of  quasi  contract  as  a  distinct  species 
of  common-law  obligation."  Woodward,  Quasi  Contracts,  §  2. 
Thubs.Quasi  Cont. — 2 


18  INTRODUCTORY NATURE  OF  QUASI  CONTRACT       (Ch.  1 

by  way  of  defence  for  Moses  in  that  court.  But  the  Court  of  Con- 
science Rejected  this  defence,  and  refused  to  receive  any  evidence  in 
proof  of  this  agreement  of  indemnity,  thinking  that  they  had  no  power 
to  judge  of  it:  and  gave  judgment  against  Moses,  upon  the  mere  foot 
of  his  indorsement,  (which  he  himself  did  not  at  all  dispute,)  without 
hearing  his  witnesses  about  the  agreement  "that  he  should  not  be  lia- 
ble :"  for  the  commissioners  held  this  agreement  to  be  no  sufficient  bar 
to  the  suit  in  tlieir  court ;  and  consequently  decreed  for  the  plaintiff  in 
that  court,  upon  the  undisputed  indorsement  made  by  Moses.  This 
decree  was  actually  pronounced,  in  only  one  of  the  4  causes  there  de- 
pending: but  Moses's  agent,  (finding  the  opinion  of  the  commissioners 
to  be  as  above  mentioned,)  paid  the  money  into  that  court,  upon  all  the 
four  notes ;  and  it  was  taken  out  of  Court  by  the  now  defendant  Mac- 
ferlan,  (the  then  plaintiff,  in  that  court,)  by  order  of  the  commissioners. 

All  this  matter  appearing  upon  evidence  before  Lord  Mansfield  at 
nisi  prius  at  Guildhall,  there  was  no  doubt  but  that,  upon  the  merits, 
the  plaintiff  was  intitled  to  the  money :  and  accordingly,  a  verdict  was 
there  found  for  Moses,  the  plaintiff  in  this  Court,  for  £6.  (the  whole 
sum  paid  into  the  Court  of  Conscience;)  but  subject  to  the  opinion  of 
the  Court,  upon  this  question,  "Whether  the  money  could  be  recovered 
in  the  present  form  of  action ;  or  whether  it  must  be  recovered  by  an 
action  brought  upon  the  special  agreement  only." 

The  Court,  having  heard  the  counsel  on  both  sides,  took  time  to 
advise. 

Lord  Mansfield  now  delivered  their  unanimous  opinion,  in  favour 
of  the  present  action. 

There  was  no  doubt  at  the  trial,  but  that  upon  the  merits  the  plain- 
tiff was  intitled  to  the  money:  and  the  jury  accordingly  found  a  ver- 
dict for  the  £6.  subject  to  the  opinion  of  the  Court  upon  this  question, 
"Whether  the  money  might  be  recovered  by  this  form  of  action,"  or 
"must  be  by  an  action  upon  the  special  agreement  only." 

Many  other  objections,  besides  that  which  arose  at  the  trial,  have 
since  been  made  to  the  propriety  of  this  action  in  the  present  case. 

The  1st  objection  is,  "That  an  action  of  debt  would  not  lie  here; 
and  no  assumpsit  will  lie,  where  an  action  of  debt  may  not  be  brought:" 
some  sayings  at  nisi  prius,  reported  by  note-takers  who  did  not  under- 
stand the  force  of  what  was  said,  are  quoted  in  support  of  that  propo- 
sition.   But  there  is  no  foundation  for  it. 

It  is  much  more  plausible  to  say,  "That  where  debt  lies,  an  action 
upon  the  case  ought  not  to  be  brought."  And  that  was  the  point  relied 
upon  in  Slade's  Case,  4  Co.  92 :  but  the  rule  then  settled  and  followed 
ever  since  is,  "That  an  action  of  assumpsit  will  lie  in  many  cases  where 
debt  lies,  and  in  many  where  it  does  not  lie."  A  main  inducement, 
originally,  for  encouraging  actions  of  assumpsit  was,  "to  take  away 
the  wager  of  law :"  and  that  might  give  rise  to  loose  expressions,  as  if 
the  action  was  confined  to  cases  only  where  that  reason  held. 

2d  Objection — "That  no  assumpsit  lies,  except  upon  an  express  or 


Sec.  1)        SOURCES  AND  SCOPE  OF  QUASI  CONTRACT  19 

implied  contract :    but  here  it  is  impossible  to  presume  any  contract  to 
refund  money  which  the  defendant  recovered  by  an  adverse  suit." 

Answer.  If  the  defendant  be  under  an  obligation,  from  the  ties  of 
natural  justice,  to  refund;  the  law  implies  a  debt,  and  gives  this  action, 
founded  in  the  equity  of  the  plaintiff's  case,  as  it  were  upon  a  contract 
("quasi  ex  contractu,")  as  the  Roman  law  expresses  it.  This  species  of 
assumpsit  ("for  money  had  and  received  to  the  plaintiff's  use")  lies  in 
numberless  instances,  for  money  the  defendant  has  received  from  a 
third  person;  which  he  claims  title  to,  in  opposition  to  the  plaintiff's 
right;  and  which  he  had,  by  law,  authority  to  receive  from  such  tliird 
person. 

3d  Objection.  Where  money  has  been  recovered  by  the  judgment  of 
a  court  having  competent  jurisdiction,  the  matter  can  never  be  brought 
over  again  by  a  new  action. 

Answer.  It  is  most  clear,  "that  the  merits  of  a  judgment  can  never 
be  over-haled  by  an  original  suit,  either  at  law  or  in  equity."  Till  the 
judgment  is  set  aside,  or  reversed,  it  is  conclusive,  as  to  the  subject 
matter  of  it,  to  all  intents  and  purposes.  But  the  ground  of  this  ac- 
tion is  consistent  with  the  judgment  of  the  Court  of  Conscience:  it 
admits  the  commissioners  did  right.  They  decreed  upon  the  indorse- 
ment of  the  notes  by  the  plaintiff :  which  indorsement  is  not  now  dis- 
puted. The  ground  upon  which  tliis  action  proceeds  was  no  defence 
against  that  sentence.  It  is  enough  for  us,  that  the  commissioners  ad- 
judged "they  had  no  cognizance  of  such  collateral  matter."  We  can 
not  correct  an  error  in  their  proceedings ;  and  ought  to  suppose  what  is 
done  by  a  final  jurisdiction,  to  be  right.  But  we  think  "the  commis- 
sioners did  right,  in  refusing  to  go  into  such  collateral  matter."  Other- 
wise, by  way  of  defence  against  a  promissory  note  for  30s.  they  might 
go  into  agreements  and  transactions  of  a  great  value :  and  if  they  de- 
creed payment  of  the  note,  their  judgment  might  indirectly  conclude 
the  balance  of  a  large  account.  The  ground  of  this  action  is  not,  "that 
the  judgment  was  wrong;"  but,  "that,  (for  a  reason  which  the  now 
plaintiff  could  not  avail  himself  of  against  that  judgment,)  the  defend- 
ant ought  not  in  justice  to  keep  the  money."  And  at  Quildhall,  I 
declared  very  particularly,  "that  the  merits  of  a  question,  determined  by 
the  commissioners,  where  they  had  jurisdiction,  never  could  be  brought 
over  again,  in  any  shape  whatsoever." 

Money  may  be  recovered  by  a  right  and  legal  judgment;  and  yet  the 
iniquity  of  keeping  that  money  may  be  manifest,  upon  grounds  which 
could  not  be  used  by  way  of  defence  against  the  judgment.  Suppose 
an  indorsee  of  a  promissory  note,  having  received  payment  from  the 
drawer  (or  maker)  of  it,  sues  and  recovers  the  same  money  from  the 
indorser  who  knew  nothing  of  such  payment.  Suppose  a  man  recovers 
upon  a  policy  for  a  ship  presumed  to  be  lost,  which  afterwards  comes 
home ;  or  upon  the  life  of  a  man  presumed  to  be  dead,  who  afterwards 
appears ;  or  upon  a  representation  of  a  risque  deemed  to  be  fair,  which 
comes  out  afterwards  to  be  grossly  fraudulent. 


20  INTRODUCTORY NATURE  OF  QUASI  CONTRACT       (Ch.  1 

But  there  is  no  occasion  to  go  further ;  for  the  admission  "that,  un- 
questionably, an  action  might  be  brought  upon  the  agreement,"  is  a 
decisive  answer  to  any  objection  from  the  judgment.  For  it  is  the 
same  thing,  as  to  the  force  and  vahdity  of  the  judgment,  and  it  is  just 
equally  affected  by  tlie  action,  whether  the  plaintiff  brings  it  upon  the 
equity  of  his  case  arising  out  of  the  agreement,  that  the  defendant  may 
refund  tlie  money  he  received ;  or,  upon  the  agreement  itself,  that,  be- 
sides refunding  the  money,  he  may  pay  the  costs  and  expences  the 
plaintiff  was  put  to. 

This  brings  the  whole  to  tlie  question  saved  at  nisi  prius,  viz. 
"Whether  the  plaintiff  may  elect  to  sue  by  this  form  of  action,  for  the 
money  only;  or  must  be  turned  round,  to  bring  an  action  upon  the 
agreement." 

One  great  benefit,  which  arises  to  suitors  from  the  nature  of  this  ac- 
tion, is,  that  the  plaintiff  needs  not  state  tlie  special  circumstances  from 
which  he  concludes  "that  ex  aequo  et  bono,  the  money  received  by  the 
defendant,  ought  to  be  deemed  as  belonging  to  him:"  he  may  declare 
generally,  "tliat  the  money  was  received  to  his  use ;"  and  make  out  his 
case  at  the  trial.  This  is  equally  beneficial  to  the  defendant.  It  is 
the  most  favourable  way  in  which  he  can  be  sued :  he  can  be  liable  no 
further  than  the  money  he  has  received ;  and  against  that  may  go  into 
every  equitable  defence  upon  the  general  issue;  he  may  claim  every 
equitable  allowance;  he  may  prove  a  release  without  pleading  it;  in 
short,  he  may  defend  himself  by  every  thing  which  shews  that  the 
plaintiff,  ex  sequo  et  bono,  is  not  intitled  to  the  whole  of  his  demand,  or 
to  any  part  of  it.  If  the  plaintiff  elects  to  proceed  in  this  favourable 
way,  it  is  a  bar  to  his  bringing  another  action  upon  the  agreement; 
though  he  might  recover  more  upon  the  agreement,  than  he  can  by  this 
form  of  action.  And  therefore,  if  the  question  was  open  to  be  argued 
upon  principles  at  large,  there  seems  to  be  no  reason  or  utility  in  con- 
fining the  plaintiff  to  an  action  upon  the  special  agreement  only. 

But  the  point  has  been  long  settled ;  and  there  have  been  many  prece- 
dents :  I  will  mention  to  you  one  only ;  which  was  very  solemnly  con- 
sidered. It  was  the  case  of  Dutch  v.  Warren,  M.  7  G.  I,  C.  B.  An 
action  upon  the  case,  for  money  had  and  received  to  the  plaintiff's  use. 
The  case  was  as  follows — Upon  the  18th  of  August,  1720,  on  payment 
of  £262.  10s.  by  the  plaintiff  to  the  defendant,  the  defendant  agreed  to 
transfer  him  5  shares  in  the  Welsh  copper  mines,  at  the  opening  of 
the  books;  and  for  security  of  his  so  doing,  gave  him  this  note — "18th 
of  August,  1720.  I  do  hereby  acknowledge  to  have  received  of  Philip 
Dutch,  i262.  10s.  as  a  consideration  for  the  purchase  of  5  shares; 
which  I  do  hereby  promise  to  transfer  to  the  said  Philip  Dutch  as  soon 
as  the  books  are  open ;  being  5  shares  in  the  Welsh  copper  mines.  Wit- 
ness my  hand,  Robert  Warren."  The  books  were  opened  on  the  22d 
of  the  said  month  of  August;  when  Dutch  requested  Warren  to  trans- 
fer to  him  the  said  5  shares ;  which  he  refused  to  do ;  and  told  the  plain- 
tiff "he  might  take  his  remedy."    Whereupon  the  plaintiff  brought  tliis 


Sec.  1)  SOURCES  AND   SCOPE   OF   QUASI   CONTRACT  21 

action,  for  the  consideration-money  paid  by  him.  And  an  objection 
was  taken  at  the  trial,  "that  this  action  upon  the  case,  for  money  had 
and  received  to  the  plaintiff's  use,  would  not  lie;  but  that  the  action 
should  have  been  brought  for  the  non-performance  of  the  contract." 
This  objection  was  over-ruled  by  the  Chief  Justice;  who  notwithstand- 
ing left  it  to  the  consideration  of  the  jury,  Whether  they  would  not 
make  the  price  of  the  said  stock,  as  it  was  upon  the  22d  of  August, 
when  it  should  have  been  delivered,  the  measure  of  the  damages ;  which 
they  did;  and  gave  the  plaintiff  but  £175.  damages.  And  a  case  being 
made  for  the  opinion  of  the  Court  of  Common  Pleas,  the  action  was 
resolved  to  be  well  brought;  and  that  the  recovery  was  right,  being 
not  for  the  whole  money  paid,  but  for  the  damages,  in  not  transferring 
the  stock  at  the  time ;  which  was  a  loss  to  the  plaintiff",  and  an  advan- 
tage to  the  defendant,  who  was  a  receiver  of  the  difference-money,  to 
the  plaintiff's  use.  The  Court  said,  tliat  the  extending  those  actions 
depends  on  the  notion  of  fraud.  If  one  man  takes  another's  money 
to  do  a  thing,  and  refuses  to  do  it,  it  is  a  fraud :  and  it  is  at  the  elec- 
tion of  the  party  injured,  either  to  affirm  the  agreement,  by  bringing  an 
action  for  the  non-performance  of  it ;  or  to  disaffirm  the  agreement  ab 
initio,  by  reason  of  the  fraud,  and  bring  an  action  for  money  had  and 
received  to  his  use. 

The  damages  recovered  in  that  case,  shew  the  liberality  with  which 
this  kind  of  action  is  considered :  for  though  the  defendant  received 
from  the  plaintiff  £262.  10s.  yet  the  difference-money  only,  of  £V75. 
was  retained  by  him  against  conscience  :*  and  therefore  the  plaintiff,  ex 
aequo  et  bono,  ought  to  recover  no  more ;  agreeable  to  the  rule  of  the 
Roman  law — "Quod  condictio  indebiti  non  datur  ultra,  quam  locuple- 
tior  factus  est,  qui  accepit."  If  the  five  shares  had  been  of  much  more 
value,  yet  the  plaintiff  could  only  have  recovered  the  i262.  10s.  by  this 
form  of  action. 

The  notion  of  fraud  holds  much  more  strongly  in  the  present  case, 
than  in  that :  for  here  it  is  express.  The  indorsement,  which  enabled 
the  defendant  to  recover,  was  got  by  fraud  and  falsehood,  for  one  pur- 
pose, and  abused  to  another. 

This  kind  of  equitable  action,  to  recover  back  money,  which  ought 
not  in  justice  to  be  kept,  is  very  beneficial,  and  therefore  much  en- 
couraged. It  lies  only  for  money  which,  ex  aequo  et  bono,  the  defend- 
ant ought  to  refund:  it  does  not  lie  for  money  paid  by  the  plaintiff, 
which  is  claimed  of  him  as  payable  in  point  of  honour  and  honesty,  al- 
though it  could  not  have  been  recovered  from  him  by  any  course  of 
law ;  as  in  payment  of  a  debt  barred  by  the  statute  of  limitations,  or 
contracted  during  his  infancy,  or  to  the  extent  of  principal  and  legal 
interest  upon  an  usurious  contract,  or,  for  money  fairly  lost  at  play; 
because  in  all  these  cases,  the  defendant  may  retain  it  with  a  safe 
conscience,  though  by  positive  law  he  was  barred  from  recovering. 
But  it  lies  for  money  paid  by  mistake ;  or  upon  a  consideration  which 

*Biit  see  Wilkinson  v.  Ferree  (18.55)  24  Pa.  190,  page  371,  infra;  Nash  v. 
Towne  nSGG)  5  Wall.  6S9,  IS  L.  Ed.  527. 


22  INTRODUCTORY NATURE  OF  QUASI  CONTRACT       (Cll.  1 

happens  to  fail ;  or  for  money  got  through  imposition,  (express,  or  im- 
pHed ;)  or  extortion ;  or  oppression ;  or  an  undue  advantage  taken  of 
the  plaintiff's  situation,  contrary  to  laws  made  for  the  protection  of 
persons  under  those  circumstances. 

In  one  word,  the  gist  of  this  kind  of  action  is,  that  the  defendant, 
upon  tlie  circumstances  of  the  case,  is  obliged  by  the  ties  of  natural 
justice  and  equity  to  refund  the  money. 

Therefore  we  are  all  of  us  of  opinion.  That  the  plaintiff  might  elect 
to  waive  any  demand  upon  the  foot  of  the  indemnity,  for  the  costs  he 
had  been  put  to;  and  bring  this  action,  to  recover  the  £6.  which  the 
defendant  got  and  kept  from  him  iniquitously. 

Rule — That  the  postea  be  delivered  to  the  plaintiff.^ ^ 


DALE  V.  SOLLET. 

(Court  of  King's  Bench,  1767.     4  Burr.  2133.) 

This  was  an  action  for  money  had  and  received  to  the  plaintiff's  use : 
non  assumpsit  was  pleaded;  and  issue  joined. 

Case — The  defendant,  a  ship-broker,  was  the  plaintiff's  agent  in  su- 
ing for  and  recovering  a  sum  of  money  for  damages  done  to  the  plain- 
tiff's ship;  and  did  recover  and  receive  £2,000.  for  the  plaintiff's 
use ;  and  paid  him  all  but  £40.  which  he  retained  for  his  labour  and 
service  therein ;  which  the  witness  (Mr.  Fuller)  swore  he  thought  to  be 
a  reasonable  allowance.  And  the  jury  were  of  opinion  "that  the  de- 
fendant ought  to  retain  £40.  as  a  reasonable  allowance."  Consequently, 
the  plaintiff  was  not  intitled  to  recover. 

The  plaintiff  objected,  at  the  trial,  "That  the  defendant  could  not 
give  evidence  in  this  manner,  of  this  labour  and  service;  but  ought  to 
have  pleaded  it  by  way  of  sett-off,  or  at  least  have  given  notice  of  it  as 
a  sett-off." 

A  verdict  was  found  for  the  plaintiff;  subject  to  the  opinion  of  this 
Court:  and  if  the  Court  should  be  of  opinion  against  him,  then  judg- 
ment to  be  entered  as  upon  a  nonsuit. 

Accordingly,  on  Tuesday  last,  (the  10th  instant,)  Mr.  Dunning  mov- 
ed on  behalf  of  the  defendant,  "that  judgment  might  be  entered 
against  the  plaintiff,  as  upon  a  non-suit:"  and  had  a  rule  to  shew  cause. 

21  "As  to  the  authority  of  Mo.ses  v.  RIacferlan,  it  has  always  been  suspected, 
and  has  hitely  been  overruled."  Per  Chase,  J.,  in  O'Harra  v.  Hall  (ISOO)  4 
Dall.  340,  Fed.  Cas.  No.  10,468. 

"Though  the  principles,  relating  to  indebitatus  assumpsit,  so  luminously  il- 
lustrated in  Moses  v.  IMacferlan,  have  been  universally  recognized,  their  ap- 
plication to  that  case  has  been  generally  reprobated  by  the  bench  as  well  aa 
the  bar."  Per  Peters,  J.,  in  Carter  v.  First  Ecclesiastical  Soc.  of  Canterbury 
(1820)  3  Conn.  455. 

"Although  the  case  of  Moses  v.  Macferlan  is  constantly  spoken  of  to-day  as 
if  it  were  overruled,  the  writer  knows  of  no  case  in  which  any  doctrine  differ- 
ing from  the  decision  of  Moses  v.  Macferlan  has  been  laid  down.  IJndoubtea- 
Ij'  Lord  Mansfield,  in  that  case,  used  many  expressions  which  would  not  rep- 
resent the  law  of  to-day,  but  they  were  merely  obiter  dicta,  and  should  not 
be  confused  with  the  grounds  upon  which  Lord  Mansfield  in  fact  rested  the 
decision  in  favor  of  the  plaintiff."    Keener,  Quasi  Contracts,  415. 


Sec.  2)       DISTINCTION  BETWEEN  CONTRACT  AND  QUASI  CONTRACT  23 

Sir  Fletcher  Norton,  on  behalf  of  the  plaintiff,  now  shewed  cause ; 
and  insisted  that  the  defendant  ought  either  to  have  pleaded  it,  or  given 
notice  of  a  sett-off :  but  that  he  could  not  take  advantage  of  it  in  this 
manner,  without  either  plea  or  notice. 

Lord  Mansfiei^d  had  no  doubt  of  the  defendant's  being  at  liberty 
to  give  this  evidence. 

This  is  an  action  for  money  had  and  received  to  the  plaintiff's  use. 
The  plaintiff  can  recover  no  more  than  he  is  in  conscience  and  equity 
intitled  to :  which  can  be  no  more  than  what  remains  after  deducting 
all  just  allowances  which  the  defendant  has  a  right  to  retain  out  of  the 
very  sum  demanded.  This  is  not  in  the  nature  of  a  cross-demand  or 
mutual  debt :  it  is  a  charge,  which  makes  the  sum  of  money  received 
for  the  plaintiff's  use  so  much  less. 

The  two  other  Judges  concurred. 

Per  Cur'.    Judgment  for  the  defendant,  as  on  a  nonsuit.*' 


SECTION   2.— DISTINCTION    BETWEEN   CONTRACT   AND 
QUASI  CONTRACT 

I.  In  General 


.  BRISTOW  V.  EASTMAN. 

(Nisi  Prius,  before  Lord  Kenyon,  C.  J.,  1794.    1  Esp.  172.) 

Assumpsit  for  money  had  and  received  to  the  use  of  the  plaintiffs, 
with  the  usual  money  counts. 

The  case,  as  it  appeared  in  evidence,  was,  that  the  defendant  had 
been  apprentice  to  the  bankrupts  before  their  bankruptcy ;  that  his 
principle  employment,  while  he  was  in  their  service,  had  been  in  passing 
the  ships  engaged  in  their  trade  at  the  customhouse,  in  making  pay- 
ments and  receiving  money  in  that  employment;  but  that,  in  making 
out  his  returns  to  them  of  the  monies  expended  on  that  account,  he  had 
made  many  very  considerable  overcharges,  by  which  he  had  defrauded 
them  of  a  very  considerable  sum  of  money,  to  recover  back  which  was 
the  object  of  the  present  action. 

Mingay  for  the  defendant  rested  his  defence  upon  two  points :  The 

22  See  Ames'  Lectures  on  Legal  History,  117,  "Account." 

Account  Stated. — "  'An  account  stated'  is  an  acknowledcjment  of  the  ex- 
isting condition  of  liability  between  the  parties.  From  it  the  law  implies  a 
promise  to  pay  whatever  balance  is  thus  acknowledged  to  be  due."  Chace  v. 
Trattord  (1875)  116  Mass.  529,  532,  17  Am.  Rep.  171.  To  sustain  an  action  up- 
on an  account  stated :  "It  is  not  necessary  that  there  sliould  be  an  exi)res3 
promise  to  pay;  *  *  ♦  on  the  contrary,  there  is  an  implied  promise  in  law 
on  the  part  of  h'.'n  against  whom  the  balance  is  found,  to  pay,  and  action  ia 
maintainable  thereon."     Voight  v.  Brooks  (1897)  19  Mont.  374,  48  Pac.  549. 


24  INTRODUCTORY NATURE  OF  QUASI  CONTRACT       (Ch.  1 

first  was,  that  during  the  time  that  he  had  been  so  employed  by  the 
bankrupts  he  was  an  infant,  and  that  therefore  an  action  for  money 
had  and  received,  which  was  founded  on  a  contract,  could  not  be  main- 
tained against  him.  The  second  was,  the  production  of  a  receipt  in  full 
of  all  demands,  given  by  one  Lempriere,  who  was  joint  assignee  with 
Bristow  the  plaintiff  to  the  bankrupts,  on  which  the  counsel  relied,  that 
having  been  given  under  knowledge  of  all  the  circumstances,  it  was  a 
complete  defence  to  the  present  action. 

Upon  the  first  point  Lord  Kenyon  said,  that  he  was  of  opinion  that 
infancy  was  no  defence  to  the  action;  that  infants  were  liable  to  ac- 
tions ex  delicto,  though  not  ex  contractu,  and  though  the  present  ac- 
tion was  in  its  form  an  action  of  the  latter  description,  yet  it  was  of 
the  former  in  point  of  substance ;  that  if  the  assignees  had  brought  an 
action  of  trover  for  any  part  of  the  property  embezzled,  or  an  action 
grounded  on  the  fraud,  that  unquestionably  infancy  would  have  been 
no  defence;  and  as  the  object  of  the  present  action  was  precisely  the 
same,  that  his  opinion  was,  that  the  same  rule  of  law  should  apply, 
and  that  infancy  was  no  bar  to  the  action.^'     *     *     * 

The  plaintiff  had  a  verdict.''* 


HERTZOG  v.  HERTZOG. 

(Supreme  Court  of  Pennsylvania,  1857.    29  Pa.  465.) 

Error  to  court  of  common  pleas,  Fayette  county. 

This  suit  was  brought  by  John  Hertzog  to  recover  froin  the  estate 
of  his  father  compensation  for  services  rendered  the  latter  in  his  life- 
time, and  for  money  lent.  The  plaintiff  was  twenty-one  years  of  age 
about  the  year  1825,  but  continued  to  reside  with  his  father,  who  was  a 
farmer,  and  to  labour  for  him  on  the  farm  except  one  year  that  he  was 
absent  in  Virginia,  until  1842,  when  the  plaintiff  married  and  took  his 
wife  to  his  father's,  where  they  continued  for  some  time  as  he  had 
done  before.  His  father  then  put  him  on  another  farm  which  he 
owned,  and  some  time  afterwards  the  father  and  his  wife  moved  into 
the  same  house  with  John,  and  continued  to  reside  there  until  his  death 
in  1849. 

The  jury  found  a  verdict  for  the  plaintiff  of  $2,203.97,  and  the  court 
entered  judgment  thereon. 

The  defendant  sued  out  a  writ  of  error. 

LowRiE,  J. 2^  "Express  contracts  are,  where  the  terms  of  the  agree- 
ment are  openly  uttered  and  avowed  at  the  time  of  the  making ;  as,  to 
deliver  an  ox  or  ten  loads  of  timber,  or  to  pay  a  stated  price  for  cer- 

2  3  As  to  the  second  point  Lord  Ivenyon  ruled  that  the  receipt  signed  by  one 
of  the  two  joint  assignees  in  bankruptcy  was  not  binding. 

2*  Accord:  Cowern  v.  Neild  (1912)  2  Q.  B.  419;  Elwell  v.  Martin  (1S59)  32 
Vt.  217 ;  Shaw  v.  Coffin  (1870)  58  Me.  254,  4  Am.  Rep.  290.  A  dictum  contra 
is  found  in  Baker  &  Paul  v.  Huddleston  (1873)  3  Baxt.  (62  Tenn.)  1. 

25  The  statement  of  facts  is  abridged  and  portions  of  the  opinion  are  omitted. 


Sec.  2)       DISTINCTION  BETWEEN  CONTRACT  AND  QUASI  CONTRACT  25 

tain  goods.  Implied  are  such  as  reason  and  justice  dictate;  and  which, 
therefore,  the  law  presumes  that  every  man  undertakes  to  perform. 
As,  if  I  employ  a  person  to  do  any  business  for  me,  or  perform  any 
work,  the  law  implies  that  I  undertook  and  contracted  to  pay  him  as 
much  as  his  labour  deserves.  If  I  take  up  wares  of  a  tradesman  with- 
out any  agreement  of  price,  the  law  concludes  that  I  contracted  to  pay 
their  real  value." 

This  is  the  language  of  Blackstone  (2  Comm.  443),  and  it  is  open  to 
some  criticism.  There  is  some  looseness  of  thought  in  supposing  that 
reason  and  justice  ever  dictate  any  contracts  between  parties,  or  im- 
pose such  upon  them.  All  true  contracts  grow  out  of  the  intentions 
of  the  parties  to  transactions,  and  are  dictated  only  by  their  mutual 
and  accordant  wills.  When  this  intention  is  expressed,  we  call  the  con- 
tract an  express  one.  When  it  is  not  expressed,  it  may  be  inferred, 
implied,  or  presumed,  from  circumstances  as  really  existing,  and  then 
the  contract,  thus  ascertained,  is  called  an  implied  one.  The  instances 
given  by  Blackstone  are  an  illustration  of  this. 

But  it  appears  in  another  place  (3  Bl.  Comm.  159-166)  that  Black- 
stone introduces  this  thought  about  reason  and  justice  dictating  con- 
tracts, in  order  to  embrace,  under  his  definition  of  an  implied  contract, 
another  large  class  of  relations,  which  involve  no  intention  to  contract 
at  all,  though  they  may  be  treated  as  if  they  did.  Thus,  whenever,  not 
our  variant  notions  of  reason  and  justice,  but  the  common  sense  and 
common  justice  of  the  country,  and  therefore  the  common  law  or  stat- 
ute law,  impose  upon  any  one  a  duty,  irrespective  of  contract,  and 
allow  it  to  be  enforced  by  a  contract  remedy,  he  calls  this  a  case  of 
implied  contract.  Thus  out  of  torts  grows  the  duty  of  compensation, 
and  in  many  cases  the  tort  may  be  waived,  and  the  action  brought  in 
assumpsit. 

It  is  quite  apparent,  therefore,  that  radically  different  relations  are 
classified  under  the  same  term,  and  this  must  often  give  rise  to  indis- 
tinctness of  thought.  And  this  was  not  at  all  necessary ;  for  we  have 
another  well-authorized  technical  term  exactly  adapted  to  the  office  of 
making  the  true  distinction.  The  latter  class  are  merely  constructive 
contracts,  while  the  former  are  truly  implied  ones.  In  one  case  the 
contract  is  mere  fiction,  a  form  imposed  in  order  to  adapt  the  case  to 
a  given  remedy ;  in  the  other  it  is  a  fact  legitimately  inferred.  In  one, 
the  intention  is  disregarded ;  in  the  other,  it  is  ascertained  and  en- 
forced. In  one,  the  duty  defines  the  contract;  in  the  other,  the  con- 
tract defines  the  duty. 

We  have,  therefore,  in  law  three  classes  of  relations  called  contracts : 

1.  Constructive  contracts,  which  are  fictions  of  law  adapted  to  en- 
force legal  duties  by  actions  of  contract,  where  no  proper  contract  ex- 
ists, express  or  implied. 

2.  Implied  contracts,  which  arise  under  circumstances  which,  ac- 
cording to  the  ordinary  course  of  dealing  and  the  common  under- 
standing of  men,  show  a  mutual  intention  to  contract. 


26  INTRODUCTORY NATURE  OF  QUASI  CONTRACT       (Cll.  1 

3.  Express  contracts,  already  sufficiently  distinguished. 

In  the  present  case  there  is  no  pretence  of  a  constructive  contract, 
but  only  of  a  proper  one,  either  express  or  implied.  And  it  is  scarcely 
insisted  that  the  law  would  imply  one  in  such  a  case  as  this ;  yet  we 
may  present  the  principle  of  the  case  the  more  clearly,  .by  showing 
why  it  is  not  one  of  implied  contract. 

The  law  ordinarily  presumes  or  implies  a  contract  whenever  this  is 
necessary  to  account  for  other  relations  found  to  have  existed  between 
the  parties. 

Thus  if  a  man  is  found  to  have  done  work  for  another,  and  there 
appears  no  known  relation  between  them  that  accounts  for  such  serv- 
ice, the  law  presumes  a  contract  of  hiring.  But  if  a  man's  house  takes 
fire,  the  law  does  not  presume  or  imply  a  contract  to  pay  his  neighbors 
for  their  services  in  saving  his  property.  The  common  principles  of 
human  conduct  mark  self-interest  as  the  motive  of  action  in  the  one 
case,  and  kindness  in  the  other;  and  therefore,  by  common  custom, 
compensation  is  mutually  counted  on  in  one  case,  and  in  the  other 
not.     *     *     * 

Every  induction,  inference,  implication,  or  presumption  in  reasoning 
of  any  kind  is  a  logical  conclusion  derived  from,  and  demanded  by, 
certain  data  or  ascertained  circumstances.  If  such  circumstances  de- 
mand the  conclusion  of  a  contract  to  account  for  them,  a  contract  is 
proved;  if  not,  not.  If  we  find,  as  ascertained  circumstances,  that  a 
stranger  has  been  in  the  employment  of  another,  we  immediately  infer 
a  contract  of  hiring,  because  the  principles  of  individuality  and  self- 
interest,  common  to  human  nature,  and  therefore  the  customs  of  so- 
ciety, require  this  inference. 

But  if  we  find  a  son  in  the  employment  of  his  father,  we  do  not  infer 
a  contract  of  hiring,  because  the  principle  of  family  affection  is  suffi- 
cient to  account  for  the  family  association,  and  does  not  demand  the 
inference  of  a  contract.  And  besides  this,  the  position  of  a  son  in  a 
family  is  always  esteemed  better  than  that  of  a  hired  servant,  and  it 
is  very  rare  for  sons  remaining  in  their  father's  family,  even  after  they 
arrive  at  age,  to  become  mere  hired  servants.  If  they  do  not  go  to  work 
or  business  on  their  own  account,  it  is  generally  because  they  perceive 
no  sufficient  inducement  to  sever  the  family  bond,  and  very  often  be- 
cause they  lack  the  energy  and  independence  necessary  for  such  a 
course;  and  very  seldom  because  their  father  desires  to  use  them  as 
hired  servants.  Customarily  no  charges  are  made  for  boarding  and 
clothing  and  pocket  money  on  one  side,  or  for  work  on  the  other;  but 
all  is  placed  to  the  account  of  filial  and  parental  duty  and  relationship. 

Judging  from  the  somewhat  discordant  testimony  in  the  present 
case,  this  son  remained  in  the  employment  of  his  father  until  he  was 
about  forty  years  old;  for  we  take  no  account  of  his  temporary  ab- 
sence. While  living  with  his  father,  in  1842,  he  got  married,  and 
brought  his  wife  to  live  with  him  in  the  house  of  his  parents.  After- 
wards his  father  placed  him  on  another  farm  of  tlie  father,  and  very 


Sec.  2)       DISTINCTION  BETWEEN  CONTKACT  AND  QUASI  CONTRACT  27 

soon  followed  him  there,  and  they  all  lived  together  until  the  father's 
death  in  1849  The  farm  was  the  father's,  and  it  was  managed  by  him 
and  in  his  name,  and  the  son  worked  on  it  under  him.  No  accounts 
were  kept  between  them,  and  the  presumption  is  that  the  son  and  his 
family  obtained  their  entire  living  from  the  father  while  they  were 
residing  with  him. 

Does  the  law,  under  the  circumstances,  presume  that  the  parties 
mutually  intended  to  be  bound,  as  by  contract,  for  the  service  and  com- 
pensation of  the  son  and  his  wife?  It  is  not  pretended  that  it  does. 
But  it  is  insisted  that  there  are  other  circumstances  besides  these,  which, 
taken  together,  are  evidence  of  an  express  contract  for  compensation 
in  some  form,  and  we  are  to  examine  this.^®     *     *     * 

Judgment  reversed,  and  a  new  trial  awarded.^' 


SCEVA  V.  TRUE. 

(Supreme  Judicial  Court  of  New  Hampshire,  1873.     53  N.  H.  627.) 

Assumpsit  for  the  value  of  the  support  furnished  by  the  plaintiff's 
intestate,  Enoch  F.  Sceva,  to  Fanny  True,  his  sister-in-law,  who  was 
and  for  more  than  a  quarter  of  a  century  had  been,  so  hopelessly  in- 
sane as  to  have  no  reason  or  understanding. 

Prior  to  his  death,  August  11,  1822,  William  True,  father  of  said 
Fanny  and  her  sister  Martha,  wife  of  said  intestate,  owned  a  farm  in 
Andover  and  Hill,  with  a  house,  barn,  and  outbuildings  thereon,  situ- 
ate in  said  Andover. 

2  6  The  court  concluded  that  there  was  no  evidence  of  an  express  contract. 

27  "From  the  foregoing  we  have  these  verities :  (a)  Appellant  was  requested 
on  hehalf  of  respondent  to  perform  for  it  services,  (b)  He  complied  with  such 
request,  continuing  his  labor  till  the  task  assigned  to  him  was  ended,  (c)  His 
services  were  very  valuable  to  the  respondent.  From  such  circumstances 
there  arises,  as  matter  of  law,  a  presumption  of  fact  that  the  services  were 
perloniied  under  contractual  relations.  It  is  a  mistake  in  the  technical  sense 
to  speak  of  the  contract  as  one  implied  by  law.  There  are  such  contracts. 
They  arise  where  there  is  a  legal  duty  to  respond  in  money  which  by  a  legal 
fiction  may  be  enforced  as  upon  an  implied  promise.  In  such  case  there  is  no 
element  of  contract  strictly  so  called.  There  is  only  the  duty  to  which  the 
law  fixes  a  legal  obligation  of  performance  as  in  case  of  a  promise  inter  partes. 
So  it  is  called  in  the  books  a  quasi  contract.  There  are  implied  contracts  in 
the  sti-ict  sense  of  the  term.  In  this  case  we  are  dealing  with  the  subject  of 
implied  contracts  in  such  sense.  Such  a  contract  requires,  the  same  as  an  ex- 
press contract,  the  element  of  mutual  meeting  of  minds  and  of  the  intention 
to  contract.  The  two  species  differ  only  in  methods  of  proof.  One  is  estab- 
lished by  proof  of  expression  of  intention,  the  other  by  proof  of  circumstances 
from  which  the  intention  is  implied  as  matter  of  fact."  I'er  Marshall,  J.,  in 
Wojahn  v.  National  Union  Bank  of  Oshkosh  (1911)  144  Wis.  646,  666,  129  N.  W. 
1068. 

The  distinction  between  contract  and  quasi  contract  is  well  stated  in  Colum- 
bus, H.  V.  &  T.  Ry.  Co.  v.  Gaffney  (1901)  65  Ohio  St.  104,  113,  61  N.  E.  152, 
and  in  Board  of  Highway  Commissioners  v.  City  of  Bloomington  (1912)  253 
111.  164,  170,  97  N.  E.  2S0,  Ann.  Cas,  lOiaA,  471.  See,  also,  2  California  Law 
Review,  171. 


28  INTRODUCTORY NATURE  OF  QUASI  CONTRACT       (Cll.  1 

On  May  25,  1822,  in  expectation  of  his  death,  said  William  True 
made  the  following  disposition  of  his  property :  He  gave,  by  an  instru- 
ment in  writing  under  seal,  all  his  personal  property,  upon  certain 
conditions  and  subject  to  certain  charges,  to  his  widow,  Betsey  True, 
who  died  upon  said  premises  in  May,  1844,  without  remarrying.  He 
also  gave  her  on  the  same  day,  in  the  same  way,  "the  use  and  occupa- 
tion of  said  real  estate,  both  of  lands,  buildings,  and  tenements,  so 
long  as  she,  the  said  Betsey,  remains  my  widow."  He  also,  by  deed, 
conveyed  on  the  same  day  one  undivided  half  of  all  said  real  estate  to 
each  of  said  daughters. 

Said  intestate  carried  on  said  premises  in  1822,  and  married  said 
Martha  in  December,  1823,  and  lived  on  said  premises  till  about  one 
month  before  his  death.  All  the  parties,  save  Fanny,  treated  said  deeds 
and  instruments  as  valid,  and  supposed  they  were  valid;  and,  aside 
from  the  time  that  the  said  defendant  was  away  in  insane  asylums  and 
infirmaries  for  treatment,  all  lived  together  on  said  premises  in  one 
family  till  they  died,  or  until  said  Enoch  F.  Sceva  refused  to  support 
said  Fanny  longer ;  and  she  was  taken  away  about  said  November  1st, 
and  when  said  Enoch  F.  Sceva  left,  the  month  prior  to  his  death. 
Said  Sceva  took  the  entire  charge  of  the  premises,  used  the  crops  and 
the  proceeds  of  the  lumber,  wood,  and  bark,  sold  off  of  the  whole 
farm  for  the  common  benefit  of  the  family,  and  paid  the  taxes  and 
other  bills  for  the  support  and  maintenance  of  the  family. 

No  administration  was  ever  had  upon  any  part  of  the  estate  of  said 
William  True,  nor  was  there  any  use  or  trust  for  the  benefit  of  said 
Fanny.  No  attempt  was  ever  made  to  make  any  contract  with  said 
Fanny  about  her  support,  or  anything  else.  No  application  was  made 
for  the  appointment  of  a  guardian  in  the  interest  of  said  Enoch  F. 
Sceva,  because  of  the  opposition  of  his  wife  to  any  step  looking  to 
that  end.  She  has  been  supported  during  said  forty  years  by  said 
Sceva,  his  wife,  and  her  mother,  out  of  the  avails  of  said  real  estate 
taken  as  aforesaid,  and  out  of  their  own  funds.  Since  1844  her  chief 
support  has  been  from  said  Sceva.  Said  intestate  was  worth  nothing 
when  he  commenced  on  said  farm,  and  died  worth  about  $1,600. 

The  defendant  moved  to  dismiss.  For  the  purpose  of  raising  ques- 
tions of  law,  and  no  other,  the  parties  agreed  that  the  facts  are  as 
stated  above,  and  the  questions  were  reserved  for  the  whole  court. 

Ladd,  J. 2^  *  *  *  -yy-g  i-ggard  it  as  well  settled  by  the  cases  re- 
ferred to  in  the  briefs  of  counsel,  many  of  which  have  been  commented 
on  at  length  by  Mr.  Shirley  for  the  defendant,  that  an  insane  person, 
an  idiot,  or  a  person  utterly  bereft  of  all  sense  and  reason  by  the  sud- 
den stroke  of  accident  or  disease,  may  be  held  liable,  in  assumpsit,  for 
necessaries  furnished  to  him  in  good  faith  while  in  that  unfortunate 
and  helpless  condition.  And  the  reasons  upon  which  this  rests  are  too 
broad,  as  well  as  too  sensible  and  humane,  to  be  overborne  by  any 

28  The  statement  of  facts  is  abridged  and  a  portion  of  the  opinion,  dis- 
cussing a  point  of  practice,  is  omitted. 


Sec.  2)       DISTINCTION  BETWEEN  CONTRACT  AND  QUASI  CONTRACT  29 

deductions  which  a  refined  logic  may  make  from  the  circumstance  that 
in  such  cases  there  can  be  no  contract  or  promise  in  fact, — no  meeting 
of  the  minds  of  the  parties.  The  cases  put  it  on  the  ground  of  an 
implied  contract;  and  by  this  is  not  meant,  as  the  defendant's  counsel 
seems  to  suppose,  an  actual  contract, — that  is,  an  actual  meeting  of 
the  minds  of  the  parties,  an  actual,  mutual  understanding,  to  be  infer- 
red from  language,  acts,  and  circumstances,  by  the  jury, — but  a  con- 
tract and  promise,  said  to  be  implied  by  the  law,  where,  in  point  of 
fact,  there  was  no  contract,  no  mutual  understanding,  and  so  no  prom- 
ise. The  defendant's  counsel  says  it  is  usurpation  for  the  court  to  hold, 
as  matter  of  law,  that  there  is  a  contract  and  a  promise,  when  all  the 
evidence  in  the  case  shows  that  there  was  not  a  contract,  nor  the 
semblance  of  one.  It  is  doubtless  a  legal  fiction,  invented  and  used 
for  the  sake  of  the  remedy.  If  it  was  originally  usurpation,  certainly 
it  has  now  become  very  inveterate,  and  firmly  fixed  in  the  body  of  the 
law. 

Suppose  a  man  steals  my  horse  and  afterwards  sells  it  for  cash. 
The  law  says  I  may  waive  the  tort,  and  recover  the  money  received  for 
the  animal  of  him  in  an  action  of  assumpsit.  Why?  Because  the 
law,  in  order  to  protect  my  legal  right  to  have  the  money,  and  enforce 
against  the  thief  his  legal  duty  to  hand  it  over  to  me,  implies  a  prom- 
ise— that  is,  feigns  a  promise  when  there  is  none — to  support  the  as- 
sumpsit. In  order  to  recover,  I  have  only  to  show  that  the  defendant, 
without  right,  sold  my  horse  for  cash,  which  he  still  retains.  Where 
are  the  circumstances,  the  language  or  conduct  of  the  parties  from 
which  a  meeting  of  their  minds  is  to  be  inferred,  or  implied,  or  imag- 
ined, or  in  any  way  found  by  the  jury?  The  defendant  never  had 
any  other  purpose  but  to  get  the  money  for  the  horse  and  make  off 
with  it.  The  owner  of  the  horse  had  no  intention  to  sell  it,  never  as- 
sented to  the  sale,  and  only  seeks  to  recover  the  money  obtained  for  it 
to  save  himself  from  total  loss.  The  defendant,  in  such  a  case,  may 
have  the  physical  capacity  to  promise  to  pay  over  to  the  owner  the 
money  which  he  means  to  steal ;  but  the  mental  and  moral  capacity  is 
wanting,  and  to  all  practical  intents  the  capacity  to  promise  according 
to  his  duty  may  be  said  to  be  entirely  wanting,  as  in  the  case  of  an 
idiot  or  lunatic.  At  all  events,  he  does  not  do  it.  He  struggles  to  get 
away  with  the  money,  and  resists  with  a  determination  never  to  pay 
if  he  can  help  it.  Yet  the  law  implies,  and  against  his  utmost  re- 
sistance forces  into  his  mouth  a  promise  to  pay.  So,  where  a  brutal 
husband,  without  cause  or  provocation,  but  from  wanton  cruelty  or 
caprice,  drives  his  wife  from  his  house  with  no  means  of  subsistence, 
and  warns  the  tradesmen  not  to  trust  her  on  his  account,  thus  expressly 
revoking  all  authority  she  may  be  supposed  to  have,  as  his  agent,  by 
virtue  of  the  marital  relation,  courts  of  high  authority  have  held  that 
a  promise  to  pay  for  necessaries  furnished  her  while  in  this  situation, 
in  good  faith,  is  implied  by  law  against  the  husband,  resting  upon  and 
arising  out  of  his  legal  obligation  to  furnish  her  support.     See  remark 


30  INTRODUCTORY NATURE  OF  QUASI  CONTRACT       (Ch.  1 

of  Sargent,  J.,  in  Ray  v.  Adden,  50  N.  H.  83,  9  Am.  Rep.  175,  and  au- 
thorities cited. 

So,  it  was  held  that  the  law  will  imply  a  promise  to  pay  toll  for 
passing  upon  a  turnpike  road,  notwithstanding  the  defendant,  at  the 
time  of  passing,  denied  his  liability  and  refused  payment.  Proprietors 
V.  Taylor,  6  N.  H.  499.  In  the  recent  English  case  of  Railway  Co.  v. 
Swaffield,  L.  R.  6  Exch.  132,  the  defendant  sent  a  horse  by  the  plain- 
tiffs' railway  directed  to  himself  at  S.  station.  On  the  arrival  of  the 
horse  at  S.  station,  at  night,  there  was  no  one  to  meet  it,  and  the  plain- 
tiffs, having  no  accommodation  at  the  station,  sent  the  horse  to  a  livery 
stable.  The  defendant's  servant  soon  after  arrived  and  demanded  the 
horse.  He  was  referred  to  the  livery  stable  keeper,  who  refused  to 
deliver  the  horse  except  on  payment  of  charges  which  were  admitted 
to  be  reasonable.  On  the  next  day  the  defendant  came  and  demanded 
the  horse,  and  the  station  master  offered  to  pay  the  charges  and  let 
the  defendant  take  away  the  horse;  but  the  defendant  declined,  and 
went  away  without  the  horse,  which  remained  at  the  livery  stable.  The 
plaintiffs  afterwards  offered  to  deliver  the  horse  to  the  defendant  at 
S.  without  payment  of  any  charges,  but  the  defendant  refused  to  re- 
ceive it  unless  delivered  at  his  farm,  and  with  payment  of  a  sum  of 
money  for  his  expenses  and  loss  of  time.  Some  months  after,  the 
plaintiffs  paid  the  livery  stable  keeper  his  charges,  and  sent  the  horse 
to  the  defendant,  who  received  it;  and  it  was  held  that  the  defendant 
was  liable,  upon  the  ground  of  a  contract  implied  by  law,  to  the  plain- 
tiffs for  the  livery  charges  thus  paid  by  them. 

Illustrations  might  be  multiplied,  but  enough  has  been  said  to  show 
that  when  a  contract  or  promise  implied  by  law  is  spoken  of,  a  very 
different  thing  is  meant  from  a  contract  in  fact,  whether  express  or 
tacit.  The  evidence  of  an  actual  contract  is  generally  to  be  found  ei- 
ther in  some  writing  made  by  the  parties,  or  in  verbal  communications 
which  passed  between  them,  or  -in  their  acts  and  conduct  considered 
in  the  light  of  the  circumstances  of  each  particular  case.  A  contract  im- 
plied by  law,  on  the  contrary,  rests  upon  no  evidence.  It  has  no  actual 
existence;  it  is  simply  a  mythical  creation  of  the  law.  The  law  says 
it  shall  be  taken  that  there  was  a  promise,  when,  in  point  of  fact,  there 
was  none.  Of  course  this  is  not  good  logic,  for  the  obvious  and  suffi- 
cient reason  that  "it  is  not  true.  It  is  a  legal  fiction,  resting  wholly  for 
its  support  on  a  plain  legal  obligation,  and  a  plain  legal  right.  If  it  were 
true,  it  would  not  be  a  fiction.  There  is  a  class  of  legal  rights,  with 
their  correlative  legal  duties,  analogous  to  the  obligationes  quasi  ex 
contractu  of  the  civil  law,  which  seems  to  lie  in  the  region  between 
contracts  on  the  one  hand  and  torts  on  the  other,  and  to  call  for  the 
application  of  a  remedy  not  strictly  furnished  either  by  actions  ex  con- 
tractu, or  actions  ex  delicto.  The  common  law  supplies  no  action  of 
duty,  as  it  does  of  assumpsit  and  trespass ;  and  hence  the  somewhat 
awkward  contrivance  of  this  fiction  to  apply  the  remedy  of  assumpsit 
where  there  is  no  true  contract,  and  no  promise  to  support  it. 


Sec.  2)       DISTINCTION  BETWEEN  CONTRACT  AND  QUASI  CONTRACT  31 

All  confusion  in  this  matter  might  be  avoided,  as  it  seems  to  me,  by 
a  suitable  discrimination  in  the  use  of  the  term  "implied  contract."  In 
the  discussion  of  any  subject  there  is  always  danger  of  spending  breath 
and  strength  about  mere  words,  as  well  as  of  falling  into  error  when 
the  same  term  is  used  to  designate  two  different  things.  If  the  term 
"implied  contract"  be  used  indifferently  to  denote  (1)  the  fictitious  cre- 
ation of  the  law  spoken  of  above ;  (2)  a  true  or  actual  but  tacit  contract, 
— that  is,  one  where  a  meeting  of  the  minds  or  mutual  understanding 
is  inferred  as  matter  of  fact  from  circumstances,  no  words,  written  or 
verbal,  having  been  used ;  and  (3)  that  state  of  things  where  one  is  es- 
topped by  his  conduct  to  deny  a  contract,  although,  in  fact,  he  has  not 
made  or  intended  to  make  one, — it  is  not  strange  that  confusion  should 
result,  and  disputes  arise,  where  there  is  no  difference  of  opinion  as 
to  the  substance  of  the  matter  in  controversy;  whereas,  were  a  differ- 
ent term  applied  to  each, — as,  for  example,  that  of  legal  duty  to  desig- 
nate the  first ;  contract,  simply,  to  designate  the  second  ;  and  contract  by 
estoppel,  the  third, — this  difiiculty  would  be  avoided.'  It  would  of 
course  come  to  the  same  thing,  in  substance,  if  the  first  were  always 
called  an  implied  contract,  while  the  other  two  were  otherwise  desig- 
nated in  such  way  as  to  show  distinctly  what  is  meant.  This  is  not  al- 
ways done,  and  an  examination  of  our  own  cases  would  perhaps  show 
that  more  or  less  confusion  has  arisen  from  such  indiscriminate  use 
of  the  term.  A  better  nomenclature  is  desirable.  But  whatever  terms 
are  employed,  it  is  indispensable  that  the  distinction,  which  is  one  of 
substance,  should  be  kept  clearly  in  mind,  in  order  that  the  principles 
governing  in  one  class  of  cases  may  not  be  erroneously  applied  to  an- 
other. See  remarks  of  Smith,  J.,  in  Bixby  v.  Moor,  51  N.  H.  402,  and 
authorities  cited  at  page  404. 

Much  may  doubtless  be  said  against  supplying  a  remedy  for  the  en- 
forcement of  a  plain  legal  right  ''by  so  rude  a  device  as  a  legal  fiction." 
Maine's  Ancient  Law,  26.  But  at  this  time  of  day  that  is  a  matter  for 
the  consideration  of  the  legislature  rather  than  the  courts.  The  remedy 
of  indebitatus  assumpsit  can  hardly  be  abolished  in  that  large  class  of 
cases  where  it  can. only  be  sustained  by  resorting  to  a  fiction  until  some 
other  is  furnished  to  take  its  place. 

It  by  no  means  follows  that  this  plaintiff  is  entitled  to  recover.  In 
the  first  place,  it  must  appear  that  the  necessaries  furnished  to  the  de- 
fendant were  furnished  in  good  faith,  and  with  no  purpose  to  take  ad- 
vantage of  her  unfortunate  situation.  And  upon  this  question  the  great 
length  of  time  which  was  allowed  to  pass  without  procuring  the  ap- 
pointment of  a  guardian  for  her  is  a  fact  to  which  the  jury  would  un- 
doubtedly attach  much  weight.  Its  significance  and  importance  must, 
of  course,  depend  very  much  on  the  circumstances  under  which  the 
delay  and  omission  occurred,  all  of  which  will  be  for  the  jury  to  con- 
sider upon  the  question  whether  everything  was  done  in  good  faith 
towards  the  defendant,  and  with  an  expectation  on  the  part  of  the 
plaintiff's  intestate  that  he  was  to  bie  paid. 


32  INTRODUCTORY NATURE  OF  QUASI  CONTRACT       (Ch.  1 

Again,  the  jury  are  to  consider  whether  the  support  for  which  the 
plaintiff  now  seeks  to  recover  was  not  furnished  as  a  gratuity,  with  no 
expectation  or  intention  that  it  should  be  paid  for,  except  so  far  as 
compensation  might  be  derived  from  the  use  of  the  defendant's  share 
of  the  farm.  And  upon  this  point  the  relationship  existing  between 
the  parties,  the  length  of  time  the  defendant  was  there  in  the  family 
without  any  move  on  the  part  of  Enoch  F.  Sceva  to  charge  her  or  her 
estate,  the  absence  (if  such  is  the  fact)  of  an  account  kept  by  him  where- 
in she  was  charged  with  her  support  and  credited  for  the  use  and  oc- 
cupation of  the  land, — in  short,  all  the  facts  and  circumstances  of  her 
residence  with  the  family  that  tend  to  show  the  intention  or  expecta- 
tion of  Enoch  F.  Sceva  with  respect  to  being  paid  for  her  support, — 
are  for  the  jury.  Munger  v.  Munger,  33  N.  H.  581 ;  Seavey  v.  Seavey, 
37  N.  H.  125;  Bundy  v.  Hyde,  50  N.  H.  116.  If  these  services  were 
rendered,  and  this  support  furnished,  with  no  expectation  on  the  part 
of  Enoch  F.  Sceva  that  he  was  to  charge  or  be  paid  therefor,  this  suit 
cannot  be  maintained ;  for  then  it  must  be  regarded  substantially  in  the 
light  of  a  gift  actually  accepted  and  appropriated  by  the  defendant, 
without  reference  to  her  capacity  to  make  a  contract,  or  even  to  signify 
her  acceptance  by  any  mental  assent. 

In  this  view,  the  facts  stated  in  the  case  will  be  evidence  for  the 
jury  to  consider  upon  the  trial ;  but  they  do  not  present  any  question 
of  law  upon  which  the  rights  of  the  parties  can  be  determined  by  the 
court.    Case  discharged.^" 

29  In  re  Rhodes  (1890)  44  Ch.  Div.  M.  Per  Cotton,  L.  J.:  "The  case  raises 
several  questions,  one  of  which  is  of  considerable  importance ;  and,  although 
in  the  view  which  we  take,  that  question  is  not  necessary  to  the  decision  of 
the  case,  yet,  as  it  has  been  fully  argued,  we  think  we  ought  to  express  our 
opinion  upon  it.  That  question  is,  whether  there  can  be  an  implied  contract 
on  the  part  of  a  lunatic  not  so  found  by  inquisition  to  repay  out  of  her  proi> 
erty  sums  expended  for  necessaries  supplied  to  her.  Now  the  term  'implied 
contract'  is  a  most  unfortunate  expression,  because  there  cannot  be  a  contract 
by  a  lunatic.  But  whenever  necessaries  are  supplied  to  a  person  who  by 
reason  of  disability  cannot  himself  contract,  the  law  implies  an  obligation  on 
the  part  of  such  person  to  pay  for  such  necessaries  out  of  his  own  property. 
It  is  asked,  can  there  be  an  implied  contract  by  a  person  who  cannot  himself 
contract  in  express  terms?  The  answer  is,  that  what  the  law  implies  on  the 
part  of  such  person  is  an  obligation,  which  has  been  improperly  termed  a  con- 
tract, to  repay  money  spent  in  supplying  necessaries.  I  think  that  the  expres- 
sion 'implied  contract'  is  erroneous  and  very  unfortunate." 

Infant's  Liability  fob  Necessabies. — "The  obligation  of  an  infant  to  pay 
for  necessaries  actually  furnished  to  him  does  not  seem  to  arise  out  of  a  con- 
tract in  the  legal  sense  of  that  term,  but  out  of  a  transaction  of  a  quasi  con- 
tractual nature;,  for  it  may  be  imposed  on  an  infant  too  young  to  understand 
the  nature  of  a  contract  at  all.  Hyman  v,  Cain  (1855)  48  N.  C.  111.  And 
where  an  infant  agrees  to  pay  a  stipulated  price  for  such  necessaries,  the  par- 
ty furnishing  them  recovers,  not  necessarily  that  price,  but  only  the  fair  and 
reasonable  value  of  the  necessaries.  Earle  v.  Reed  (1845)  10  Mete.  (Mass.)  387; 
Barnes  v.  Barnes  (18S3)  50  Conn.  572;  Trainer  v.  Trumbull  (1886)  141  Mass, 
527,  6  N.  E.  761;  Keener's  Quasi  Contracts,  p.  20.  This  being  so,  no  binding 
obligation  to  pay  for  necessaries  can  arise  until  they  have  been  supplied  to  the 
infant ;  and  he  cannot  make  a  binding  executory  agreement  to  pui'chase  neces- 
saries." Gregory  v.  Lee  (1894)  64  Conn.  407,  30  Atl.  53,  25  L.  R.  A.  618,  per 
Torrance,  J. 


Sec.  2)      DISTINCTION  BETWEEN  CONTRACT  AND  QUASI  CONTEACT  S3 

II.  Construction  of  Statutes 

(A)  The  Statute  of  Limitations 

JONES  V.  POPE. 

(Court  of  King's  Bench,  1667.     1  Wm.  Saund.  37.) 

Debt  on  escape. — The  plaintiff  declares  that  he,  on  the  14th  of  June, 
1654,  prosecuted,  out  of  the  then  court  of  the  upper  bench,  a  writ  of 
testatum  capias  ad  satisfaciendum,  against  one  Fabian  Hill,  directed 
to  the  sheriffs  of  the  city  of  Bristol,  whereby  the  sheriffs  were  com- 
manded that  they  should  take  the  said  Fabian  Hill,  to  have  his  body 
before  the  late  pretended  Protector  Oliver,  &c.,  in  the  upper  bench  at 
Westminster,  on  Saturday  next  after  one  month  of  St.  Michael,  to  sat- 
isfy the  plaintiff  of  ilOOO  debt  and  £7  6d.  costs,  by  force  of  which  writ 
the  defendant  and  one  Thomas  Bull,  then  sheriffs  of  the  said  city, 
afterwards,  to  wit,  on  the  10th  of  August,  in  the  year  abovesaid,  with- 
in the  same  city,  took  the  said  Fabian  Hill  in  execution  for  the  debt  and 
costs  aforesaid,  and  had  him  in  their  custody  until  afterwards,  to  wit, 
on  the  first  of  September,  in  the  year  1654  aforesaid,  the  said  now 
defendant  and  the  said  Bull,  being  then  sheriffs,  let  the  said  Hill  at 
large,  and  suffered  him  to  escape,  the  plaintiff  not  being  satisfied  his 
debt  and  costs,  and  that  afterwards  Bull  died,  whereby  an  action  ac- 
crued to  the  plaintiff  to  demand  and  have  his  debt  of  the  defendant, 
being  the  surviving  sheriff,  yet  the  said,  &c.  The  defendant  pleads  in 
bar,  that  the  plaintiff's  bill  was  exhibited  against  him  on  the  21st  of 
November,  in  the  17th  year  of  the  reign  of  the  now  king,  and  that 
since  the  cause  of  action  accrued,  six  years  and  more  were  elapsed 
before  the  day  of  the  exhibiting  the  said  bill.  And  this,  &c.  Where- 
fore, &c.    Upon  which  plea  the  plaintiff  demurred  in  law. 

And  Jones,  of  counsel  with  the  plaintiff,  argued  against  the  plea,  that 
an  action  of  debt  for  an  escape  is  not  within  the  statute  of  limitations 
of  21  Jac.  1.  c.  16.  For  the  words  of  the  statute  are:  "All  actions  of 
debt,  grounded  upon  any  lending,  or  contract,  without  specialty,  all 
actions  of  debt  for  arrearages  of  rent,  shall  be  brought  within  six 
years,"  &c.  But  he  said,  that  an  action  of  debt  on  an  escape  is  not 
within  the  statute,  for  two  reasons.  First,  because  the  action  is  not 
founded  upon  any  lending  or  contract ;  and  the  statute  does  not  limit 
all  actions  of  debt  generally,  but  only  actions  of  debt  founded  upon  a 
lending  or  contract  without  specialty ;  and  this  is  a  debt  created  by  the 
law  without  any  lending  or  contract,  and  therefore  is  not  limited  or 
restrained  by  the  statute.  Secondly,  he  said,  that  the  action  of  debt  on 
an  escape  is  founded  upon  a  specialty,  namely,  upon  statute  law,  and 
so  out  of  the  statute  of  limitations.  For  at  common  law  no  action  of 
debt  lay  against  a  gaoler  for  an  escape  out  of  execution,  but  only  an 
TuuKS. Quasi  Cont. — 3 


34  INTRODUCTORY NATURE  OF  QUASI  CONTRACT       (Ch.  1 

action  upon  the  case,  as  appears  in  2  Inst.  382.  Then  the  statute  of  1 
Ric.  II,  c.  12,  gives  to  creditors  an  action  of  debt  against  the  warden  of 
the  Fleet  upon  an  escape  out  of  execution,  and  the  statute  by  con- 
struction extends  to  all  other  gaolers  and  sheriffs.  And  so  the  statute 
is  a  specialty,  upon  which  the  action  is  founded;  and  therefore  it  is 
clearly  out  of  the  words  and  intention  of  the  statute  of  limitations, 
which  only  limits  actions  of  debt  without  specialty.  And  he  further 
said,  that  although  the  words  of  the  statute  of  limitations  are  general, 
as  to  the  limitation  of  all  actions  of  debt  for  arrearages  of  rent,  yet 
it  had  been  adjudged  that  an  action  of  debt  for  the  arrearages  of  rent 
reserved  by  indenture  was  not  within  the  intention  of  the  said  statute. 
Hutton's  Rep.  109,  Freeman  and  Stacie's  Case.  And  so,  he  said,  it 
had  been  adjudged  upon  the  statute  of  2  &  3  Ed.  VI,  c.  13,  of  tithes, 
that  an  action  brought  upon  that  statute  was  not  within  the  statute  of 
limitations,  because  it  was  founded  upon  a  specialty,  namely,  the  act  of 
Edw.  VI.  Cro.  Car.  513,  15  Car.  I,  Talory  and  Jackson's  Case.  And 
therefore  he  concluded  the  plea  was  bad. 

Saunders  e  contra.  And  that  the  plea  was  good.  And  he  said  that 
the  action  of  debt  upon  an  escape  was  within  tire  statute  of  limitations, 
because,  although  it  is  not  founded  upon  a  lending  or  contract  properly, 
yet  the  law  has  made  a  contract,  and  the  statute  intends  to  limit  all 
actions  of  debt  founded  upon  a  contract  without  specialty,  and  has  not 
distinguished  between  contracts  in  law  and  in  fact,  but  includes  all. 
And  he  further  said,  that  the  action  is  not  only  founded  upon  the 
statute  of  1  Ric.  II,  but  upon  the  escape,  which  is  a  naked  matter  of 
fact:  for  though  the  statute  and  also  the  judgment  and  writ  of  execu- 
tion are  of  record,  and  so  specialties,  yet  the  escape,  upon  which  the 
action  is  founded,  is  a  mere  matter  of  fact.  For  if  the  action  were 
founded  upon  a  record,  the  defendant  could  not  plead  nil  debet;  for 
this  is  no  plea  to  a  specialty ;  but  without  doubt  the  defendant  can 
plead  nil  debet.    And  so  it  seemed  to  him  that  the  plea  was  good. 

But  for  the  reasons  of  Jones,  the:  Court  held  the  plea  bad,  and  that 
the  action  was  not  within  the  statute  of  limitations.^" 

Then  Saunders  moved  an  exception  to  the  declaration,  tliat  the 
plaintiff  has  only  shewn  that  he  had  sued  a  writ  of  execution,  by  which 
Hill  was  taken,  and  escaped ;  but  he  has  not  shewn  that  the  plaintiff 
had  recovered  any  judgment,  as  he  ought:  because  the  defendant  might 
have  pleaded  nul  tiel  record  to  the  judgment,  if  the  plaintiff"  had  set  it 
out,  as  appears  in  Doctor  Drury's  Case,  8  Rep.  142,  but  by  this  declara- 
tion the  defendant  is  ousted  of  such  a  plea.f     *     *     * 


30  Accord:  Hodsden  v.  Harridge  (1670)  2  William  Saunders,  64.  (Debt  on  an 
award  is  not  within  the  statute  of  limitations  of  21  Jac.  I.  c.  16.  The  obli- 
gation is  not  "founded  upon  any  lending  or  contract,"  but  it  is  "a  debt  ex  quasi 
contractu,  as  the  civilians  term  it,  for  which  the  law  gives  an  action  of  debt, 
although  there  is  no  contract  between  the  parties.")  See,  also,  Wickersham 
V.  Lee,  No.  2  (1S77)  S3  Pa.  422. 

t  A  portion  of  defendant's  argument  to  this  point  is  omitted. 


Sec.  2)       DISTINCTION  BETWEEN  CONTRACT  AND  QUASI  CONTRACT  35 

And  of  such  opinion  was  All  The  Court.  But  then  the  plaintiff 
prayed  to  discontinue  his  action,  which  was  granted  to  him  upon  pay- 
ment of  costs,  &c. 


JORDAN  V.  ROBINSON. 
(Supreme  Judicial  Court  of  Maine,  1838.     15  Me.  167.) 

Weston,  C.  J.  This  is  an  action  of  debt  on  a  judgment  of  the  Su- 
preme Court  of  Judicature  of  the  British  Province  of  New  Brunswick, 
rendered  in  1818;  with  a  profert  of  an  exemplification  of  the  judgment, 
which  forms  the  basis  of  the  action.  The  defendant  has  pleaded  the 
general  issue,  and  filed  a  brief  statement,  relying  upon  the  statute  of 
limitations. 

Whatever  objection  may  be  made  to  the  conclusive  character  of  the 
judgment,  by  the  practice  and  course  of  decisions  in  this  country,  there 
can  be  no  question,  but  the  judgment  is  prima  facie  evidence  of  the  debt, 
sought  to  be  recovered.  No  evidence  or  suggestion,  impeaching  the 
original  validity  of  the  judgment,  has  been  offered  by  the  defendant. 
Whether  barred  or  not,  therefore,  must  depend  upon  the  statute  of 
limitations.  If  it'is  an  action  of  debt,  grounded  upon  any  lending  or 
contract,  without  specialty,  it  is  within  the  statute,  unless  excluded  from 
its  operation,  by  an  exception,  which  will  be  noticed  hereafter.  The 
statute  does  not  apply  to  all  actions  of  debt,  without  specialty,  but  to 
such  as  are  grounded  upon  any  lending  or  contract.  Our  statute  does 
in  this  respect  conform  to  the  English  statute  of  the  twentieth  of 
Charles  the  Second.  And  the  English  statute  has  been  construed  to 
apply  to  a  lending  or  contract,  actually  and  expressly  made,  and  not 
to  contracts,  raised  by  implication  of  law.  Hodsden  v.  Harridge,  2 
Saunders,  64.  The  generality  of  the  limitation  was  there  held  to  be 
qualified  by  the  words,  "grounded  upon  any  lending  or  contract,"  to 
the  exclusion  of  such,  as  the  law  might  raise  or  imply. 

The  obligation  of  a  debt  on  judgment,  does  not  arise  from  any  ex- 
press contract,  made  by  the  party,  charged  by  it.  Judicium  redditur  in 
invitum.  Upon  a  refined  and  artificial  view  of  the  obligations,  imposed 
by  law  upon  every  individual,  they  may  be  resolved  into  a  contract, 
which  he  makes  with  society  to  obey  the  laws,  by  which  he  is  pro- 
tected. And  the  force  of  legal  obligation,  has,  by  some  elementary 
writers,  been  attempted  to  be  strengthened  upon  this  principle.  3  Bl. 
Com.  160.  But  contracts  of  this  description  are  not  barred  by  this 
part  of  the  statute;  otherwise  the  qualifying  words  would  be  without 
effect  or  operation ;  for  all  actions  of  debt  are  founded  upon  contracts, 
expressed  or  implied,  in  this  broad  sense  of  the  term.  Upon  this 
view  of  the  statute,  which  in  Pennsylvania  corresponds  with  our  own. 
the  Supreme  Court  of  that  State,  in  Richards  v.  Bickley,  13  Serg.  & 
R.  (Pa.)  395,  were  of  opinion,  that  debt  on  a  foreign  judgment  was  net 


36  INTRODUCTORY ^NATURE  OF  QUASI  CONTRACT  (Ch.  1 

barred  by  the  statute,  at  least  unless  it  appeared  to  be  based  upon  a 
lending  or  contract,  without  specialty.  And  as  the  foreign  judgment 
was  there  rendered  upon  a  specialty,  it  was  held  not  to  be  a  case  within 
the  statute. 

It  was  understood  for  some  time,  that  debt  could  not  be  brought 
upon  a  foreign  judgment;  and  that  assumpsit  alone  was  the  proper 
remedy.  Thus  Buller,  J.,  in  Walker  v.  Witter,  Doug.  1,  says,  "that 
we  meet  with  no  instance  in  the  books  of  an  action  of  debt,  brought 
on  a  foreign  judgment."  That  was  the  first  instance  in  which  the  ac- 
tion had  been  sustained.  And  the  bar  may  attach,  when  that  form  of 
action  is  resorted  to,  when  it  would  not  attach  upon  an  action  of  debt. 
Some  of  the  cases  may  be  reconciled  with  each  other,  upon  this  dis- 
tinction. 

We  are  satisfied,  that  if  we  look  to  the  judgment  alone,  as  the  basis 
of  the  action,  without  regard  to  the  consideration,  upon  which  it  is 
founded,  the  obligation  thence  arising  is  not  a  debt,  grounded  upon  any 
lending  or  contract,  within  the  meaning  of  the  statute.  And  if  we 
look  to  the  consideration  of  the  judgment,  we  find  it  founded  upon  an 
express  contract,  but  upon  one  excepted  from  the  operation  of  the 
statute,  being  rendered  upon  a  note  in  writing,  for  the  payment  of 
money,  attested  by  a  witness.  The  default  is  accordingly  to  stand ;  and 
judgment  is  to  be  rendered  thereon.^^ 


81  Pease  v.  Howard  (1817)  14  Johns.  (N.  T.)  479,  was  an  action  of  debt  on 
a  domestic  judgment  of  a  court  not  of  record.  Tlie  court,  construing  a  stat- 
ute bamng  within  six  years  "all  actions  of  debt,  *  *  *  founded  upon  any 
contract  without  specialty,"  speaking  through  Van  Ness,  J.,  said :  "The  set- 
tled construction  of  the  statute  is  that  it  applies  solely  to  actions  of  debt  found- 
ed upon  contracts  in  fact,  as  distinguished  from  those  arising  by  construction 
of  law.  It  has  been  held  that  debt  upon  a  recovery  in  trover  or  ti'espass  in 
the  county  court  or  court  baron,  and  in  various  other  inferior  tribunals  in 
England,  is  not  founded  upon  any  contract  in  fact  between  the  parties,  and 
therefore,  not  barred  by  the  statutes.  2  Sauud.  64,  65,  etc.  (1671),  in  notes 
and  cases  there  cited.  Such,  too,  is  the  case  of  an  action  of  debt  founded  upon 
a  statute;  for  which  this  reason  is  given,  that  a  statute  is  a  specialty.  1 
Saund.  36,  37  (1667),  in  notes." 

See,  also,  Barber  v.  International  Co.  (1902)  74  Conn.  652,  656,  51  Atl.  857, 
92  Am.  St  Rep.  246. 

For  opposing  views  as  to  whether  a  judgment  is  within  that  provision  of 
the  statute  of  limitations  which  provides  for  the  revival  of  a  barred  debt  by 
acknowledgment  or  part  payment,  see  Olson  v.  Dahl  (1906)  99  Minn.  433,  109 
N.  W.  1001,  8  L.  K.  A.  (N.  S.)  444,  116  Am.  St.  Rep.  435,  9  Ann.  Cas.  252,  and 
Spilde  V.  Johnson  (1906)  132  Iowa,  484,  109  N.  W.  1023,  8  L.  B.  A.  (N.  S.)  439 
(with  note  of  the  authorities)  119  Am.  St.  Rep.  578. 

Modem  statutes  of  limitation  usually  contain  special  provisions  governing 
actions  on  judgment.     See  2  Black  on  Judgments,  §  985 ;    23  Cyc.  1508. 

In  Bree  v.  Holbrech  (1781)  2  Douglas,  654,  it  was  held  that  an  action  of 
assumpsit  to  recover  money  paid  by  mistake  was  barred  in  six  years  by  the 
provision  in  the  statute  of  limitation  (21  Jac.  I,  §  3)  referring  to  "all  actions 
*  *  *  upon  the  case,  *  *  *  all  actions  of  debt  upon  any  lending  gr  con- 
tract without  specialty." 

In  Wilson  v.  Towle  (1848)  19  N.  II.  244,  it  was  held  that  an  action  of  debt 
to  recover  an  equitable  rent  charge  was  not  within  the  identical  provision  of 
the  New  Hampshire  statute  of  limitations.     It  should  be  noted,  howe\or,  that 


Sec.  2)       DISTINCTION  BETWEEN  CONTRACT  AND  QUASI  CONTRACT  37 

(B)  Statutes  Regulating  Procedure 
TAYLOR  V.  ROOT. 

(Court  of  Appeals  of  New  York,  18G8.    4  Keyes,  335.) 

Appeal  from  judgment  of  the  Supreme  Court  in  the  General  Term 
for  the  First  District,  afifirming  judgment  on  the  report  of  a  referee. 

Action  by  plaintiffs  against  defendants  for  an  accounting.  The 
defendants  pleaded  as  a  set-off  to  the  claim  of  the  plaintiff  Hartshorne 
a  judgment  for  $280.18  against  Hartshorne  in  an  action  of  slander  ob- 
tained by  the  defendant  R.  C.  Root,  which  judgment  had  been  assigned 
by  said  Root  to  all  the  defendants  in  this  action  before  this  action  was 
commenced.  The  action  was  tried  before  a  referee,  who  ruled  that  de- 
fendants were  not  entitled  to  set  off  said  judgment,  and  decided  in 
favor  of  plaintiff  on  the  principal  cause  of  action. 

Woodruff,  J.^^  1.  The  agreement,  set  forth  in  the  complaint  herein 
as  the  foundation  of  the  action,  required  the  defendants  to  divide  the 
net  proceeds  of  the  publication  of  the  New  York  Register,  etc.,  into 
five  parts.  Two  of  these  parts  the  defendants  were  to  retain  to  them- 
selves, and  one  of  the  remaining  three  parts  they  were  to  pay  to  each 
of  the  plaintiffs. 

The  plaintiffs  were  entitled  to  an  accounting.     *     *     * 

2.  If,  then,  the  claim  of  the  defendants  against  the  plaintiff,  Hart- 
shorne, was  one  which,  within  the  provisions  of  the  Code,  was  a  proper 
subject  of  counterclaim,  the  referee  erred  in  rejecting  it,  when  he 
should  have  allowed  it  against  the  one-fifth  of  the  proceeds  which  the 
defendants  had  agreed  to  pay  to  Hartshorne. 

The  claim  was  a  judgment  against  tlie  plaintiff,  Hartshorne,  recov- 
ered, assigned  to  and  held  by  the  defendants  before  the  commence- 
ment of  this  action. 

The  Code  of  Procedure,  in  declaring  what  may  be  allowed  as  a 
counterclaim,  provides,  that  a  defendant  may  set  up,  "in  an  action  on 
contract,  any  other  cause  of  action  arising  also  on  contract,  and  exist- 
ing at  the  commencement  of  the  action." 

It  appears  by  the  case,  that  the  referee  rejected  the  defendants' 
claim,  on  the  ground  that  the  judgment  held  by  them  against  Hart- 
shorne, was  recovered  in  an  action  "founded  not  on  contract  but  on 

by  the  usual  rule  in  this  country  such  an  equitable  rent  charge  is  considered 
to  be  a  contract  implied  in  fact.  See  cases  cited  in  note,  8  L.  R  A.  (N.  S.) 
393. 

See,  also,  McClaine  v.  Rankin  (1905)  197  U.  S.  154,  25  Sup.  Ct.  410,  49 
L.  Ed.  702,  3  Ann.  Cas.  500  (stated  briefly  in  note,  page  48,  infra). 

Under  a  statute  of  limitations  barring  at  the  expiration  of  six  years  an 
action  "upon  a  contract,  obligation,  or  liability,  express  or  implied,"  it  was 
held  in  Roberts  v.  Ely  (1889)  113  N.  Y.  128,  20  N.  E.  606,  that  a  claim  for  mon- 
ey had  and  received  against  one  who  had  insured  goods  for  plaintiff's  benefit, 
and  who  refused  to  account  to  plaintiff  for  the  money  collected  under  such  in- 
surance, was  barred. 

82  The  facts  are  restated  and  a  portion  of  the  opinion  is  omitted. 


38  INTRODUCTORY NATURE  OF  QUASI  CONTRACT       (Ch.  1 

tort,  being  for  slanderous  words  spoken  by  the  said  Hartshorne"  of 
and  concerning  the  plaintiff  therein. 

This  was  erroneous.  The  nature  of  the  action  wherein  the  judg- 
ment was  recovered  and  the  cause  tliereof  were  wholly  immaterial,  and 
in  no  manner  affected  the  right  of  counterclaim ;  the  error  of  the  ref- 
eree either  proceeded  upon  a  misapprehension  of  the  meaning  of  the 
Code,  above  cited,  or  it  overlooked  the  elementary  definitions  in  tlie 
law  of  contracts. 

Contracts  are  of  three  kinds :  simple  contracts,  contracts  by  spe- 
cialty, and  contracts  of  record.  A  judgment  is  a  contract  of  the  high- 
est nature  known  to  the  law.  Actions  upon  judgment  are  actions  on 
contract.  See  Blackstone,  Chitty,  Addison,  Story,  Parsons,  or  any 
other  elementary  writer  on  Contracts.  The  cause  or  consideration  of 
the  judgment  is  of  no  possible  importance;  that  is  merged  in  the  judg- 
ment. When  recovered,  the  judgment  stands  as  a  conclusive  declara- 
tion that  the  plaintiff  therein  is  entitled  to  the  sum  of  money  recovered. 
No  matter  what  may  have  been  the  original  cause  of  action,  the  judg- 
ment forever  settles  the  plaintiff's  claim  and  the  defendant's  assent 
thereto ;  this  assent  may  have  been  reluctant,  but  in  law  it  is  an  assent, 
and  the  defendant  is  estopped  by  the  judgment  to  dissent  Forever 
thereafter,  any  claim  on  the  judgment  is  setting  up  a  cause  of  action 
on  contract.  It  is  strictly  an  action  ex  contractu,  if  suit  is  brought 
thereon ;  it  is  no  less  ex  contractu  when  set  up  as  a  counter  claim. 

For  this  error  of  the  referee  the  judgment  must  be  reversed,  and  a 
new  trial  ordered  that  the  counter  claim  may  be  allowed. 

Ordered  accordingly.^^ 


MOORE  V.  NOWELIv. 

(Supreme  Court  of  North  Carolina,  1886.     94  N.  C.  265.) 

Plaintiff  brought  action  in  his  own  name  upon  several  judgments  ob- 
tained by  one  Davis  against  the  defendants,  the  plaintiff  alleging  that 
he  was  an  assignee  for  value  of  said  judgments.  The  defendant  Up- 
church  demurred  to  tlie  complaint  on  the  following  grounds : 

1.  That  the  judgments  on  which  the  plaintiff  brings  his  action  are 
not  negotiable  or  assignable  in  law,  so  as  to  give  the  plaintiff  a  right 
of  action  at  law  in  his  own  name  thereon. 

2.  That  the  plaintiff  is  not  a  party  to  the  judgments  on  which  his 
action  is  brought,  and  was  not  a  party  to  the  action  in  which  the  said 
judgments  were  rendered  by  the  justice  of  the  peace,  and  has  no  legal 
right  to  sue  on  the  said  judgment  in  his  own  name.     *     *     * 

33  Contra :  Woods  v.  Ayres  (187S)  .39  Mich.  345,  33  Am.  Rep.  396.  (Statutory 
duty  to  make  compensation  for  breaking  a  jam  of  lags.  Held  not  within  a 
statute  allowing  set-off  of  "mutual  demands  arising  upon  judgment  or  upon 
contract  express  or  implied" — an  able  opinion  by  Graves,  J.) 

The  overwhelming  weight  of  authority  is  in  accord  with  the  principal  case. 
Pomeroy,  Code  Remedies  (4th  Ed.)  §§  G75,  677. 


Sec.  2)       DISTINCTION  BETWEEN  CONTKACT  AND  QUASI  CONTRACT  39 

His  honor  overruled  the  demurrer,  and  gave  judgment  final  against 
the  defendant  Upchurch,  from  which  he  appealed. 

Merrimon,  J.^*  Judgments,  whether  they  be  granted  by  a  justice 
of  the  peace,  or  a  court  of  record,  are  assignable  either  in  writing  or 
by  merely  verbal  transfer,  so  as  to  pass  the  equitable  title  to  them  to 
the  purchaser.    Winberry  v.  Koonce,  83  N.  C.  351. 

The  judgments  mentioned  and  described  in  the  complaint,  were  as- 
signed to  the  plaintiff  in  writing,  for  value,  and  he  became  the  com- 
plete equitable  owner  of  them  and  the  "real  party  in  interest."  The 
person  in  whose  name  they  were  taken,  has  only  the  naked  legal  title 
to  them,  and  he  holds  that  for  the  plaintiff. 

It  is  insisted,  however,  that  the  statute,  (The  Code,  §  177,)  provides 
that,  "Every  action  must  be  prosecuted  in  the  name  of  the  real  party 
in  interest,  except  as  otherwise  provided,  but  this  section  shall  not  be 
deemed  to  authorize  the  assignment  of  a  thing  in  action  not  arising 
out  of  contract,"  and  that  the  judgments  are  things  in  action  not  aris- 
ing "out  of  contract." 

We  cannot  concur  in  this  view.  Judgments  are,  it  is  true,  not  ordi- 
narily and  always  and  for  all  purposes  treated  as  contracts,  as  was 
decided,  in  McDonald  v.  Dickson,  87  N.  C.  404;  but  in  the  sense  of 
distinguishing  them  from  causes  of  action  arising  ex  delicto,  they  are 
contracts,  and  are  classed  in  the  law  as  contracts  of  record,  and  of  the 
highest  dignity.  They  possess  the  quality  of  engagement,  by  implica- 
tion and  force  of  the  law,  on  the  part  of  the  judgment  debtor,  to  pay 
the  sum  of  money  adjudged  to  be  due  the  judgment  creditor.  It  is 
said,  that  contracts  or  obligations  ex  contractu  are  of  three  descrip- 
tions, and  they  may  be  classed,  with  reference  to  their  respective  or- 
ders or  degrees  of  superiority,  as  follows:  1.  Contracts  of  record;  2. 
Specialties ;  3.  Simple  contracts. 

Contracts  of  record  consist  of  judgments,  recognizances,  &c.  Chit- 
ty  on  Cont.  3.  See  also  the  dissenting  opinion  of  Justice  Ruffin,  in 
McDonald  v.  Dickson,  supra. 

The  term  "contract,"  as  employed  in  the  statute  just  cited,  is  used 
in  its  broadest  legal  sense — in  a  fundamental  sense — and  implies  and 
embraces  all  things  in  action,  that  have  the  nature  or  legal  quality  of  a 
contract  as  defined  by  the  law.  It  is  employed  in  a  leading  and  distin- 
guishing sense,  in  the  formation  of  a  system  of  procedure. 

Therefore,  the  judgments  sued  upon  in  this  action  do  arise  out  of 
contract,  and  the  plaintiff,  as  assignee,  may  maintain  an  action  upon 
them  in  his  own  name.     *     *     * 

The  judgment  must  be  affirmed.    No  error. 

Affirmed.^'' 

84  The  statement  of  facts  is  abridged  and  a  portion  of  the  opinion  Is  omitted. 

3  5  In  Childs  v.  Harris  Manufacturing  Co.  (1S87)  68  Wis.  231,  32  N.  W.  43.  it 
was  held  that  a  judgment  for  the  payment  of  money  only  Avas  a  contract  within 
a  statute  authorizing  the  joinder  of  causes  of  action  arising  out  of  "contract  ex- 
press or  implied"  (Rev:  St.  1878,  §  2647,  subd.  2) ;   Taylor,  J.,  saying :  "Whc-u  we 


40  INTRODUCTORY NATURE  OF  QUASI  CONTRACT       (Ch.  1 

NEVADA  COMPANY  v.  FARNSWORTH. 
(Circuit  Court  of  tlie  United  States,  D.  Utah,  1S98.     89  Fed.  164.) 

Opinion  on  motion  to  dissolve  attachment. 

Marshall,  District  Judge.^**  The  case  made  by  the  complaint  is 
this :  The  plaintiff  intrusted  to  the  defendant,  its  agent,  large  sums  of 
money  with  which  to  make  certain  payments.  The  defendant  paid  a 
portion  of  the  money  in  accordance  with  the  instructions,  but  retained 
a  large  part,  and  converted  the  same  to  his  own  use.  The  complaint, 
however,  does  not  proceed  in  tort  for  the  conversion,  but  ex  contractu 
for  money  had  and  received  to  the  plaintiff's  use.  In  aid  of  the  ac- 
tion, an  attachment  was  sued  out  and  levied  on  property  of  the  defend- 

consider  the  object  of  section  2647,  we  think  it  very  clear  that  the  Le.2:islature  irk- 
tended  to  use  the  word  'contract'  in  said  subdivision  in  its  largest  sense,  and 
not  in  a  restricted  sense.  The  object  of  the  section  as  a  whole  is  to  classify 
causes  of  action  with  reference  to  their  joinder  in  one  and  the  same  action ; 
and  it  attempts  to  give  general  rules  for  the  joinder  or  nonjoinder  of  all  ac- 
tions. We  must  take  it  for  granted  that  the  Legislature  knew  that  actions 
upon  judgments  were  a  common  class  of  actions,  and  that  the  Legislature 
contemplated  that  it  had  made  provision  in  said  section  for  the  classification 
of  such  actions.  Unless  an  action  upon  a  judgment  is  an  action  upon  conti-act, 
express  or  implied,  within  the  meaning  of  said  subdivision  2,  then  actions  upon 
judgments  are  not  included  within  any  of  the  provisions  of  said  section,  i;nd 
ai-e  entirely  unprovided  for  by  the  legislative  classification.  In  this  view  of 
the  subject,  notwithstanding  the  fact  that  in  other  parts  of  the  statute,  and 
for  other  purposes,  the  Legislature  seems  to  have  made  a  distinction  between 
contracts  and  judgments,  that  fact  furnishes  no  .good  reason  for  holding  that, 
in  said  section  2G47,  the  word  'contract'  was  not  intended  to  be  used  in  its 
larger  meaning,  so  as  to  cover  a  case  of  a  judgment  for  the  payment  of  mon- 
ey." 

In  O'Brien  v.  Yoimg  (1884)  95  N.  T.  428,  47  Am.  Rep.  64,  the  statutory  rate 
of  interest  had  been  reduced  from  7  per  cent,  to  6  per  cent,  after  the  rendi- 
tion of  plaintiff's  judgment.  The  statute  contained  a  clause  exempting  from 
its  operation  "any  contract  or  obligation"  made  prior  to  the  passage  of  the 
act  Held,  that  this  judgment  was  not  a  contract  and  that  the  exemption  in 
the  statute  applied  only  to  genuine  contracts.  Earl,  J.,  said :  "But  is  a  judg- 
ment, properly  speaking,  for  the  purposes  now  in  hand,  a  contract?  I  think 
not.  The  most  important  elements  of  a  contract  are  wanting.  There  is  no 
aggregatio  mentium.  The  defendant  has  not  voluntarily  assented.  All  the 
authorities  assert  that  the  existence  of  parties  legally  capable  of  contracting 
is  essential  to  every  contract,  and  yet  they  nearly  all  agree  that  judgments 
entered  against  lunatics  and  others  incapable  in  law  of  contracting  are  con- 
clusively binding  until  vacated  or  reversed.  In  Wyman  v.  Mitchell  (1828)  1 
Cow.  (N.  Y.)  316,  Sutherland,  J.,  said  that  'a  judgment  is  in  no  case  a  contract 
or  agreement  between  the  parties.'  In  McCoun  v.  New  York  Cent.  &  H.  E.  R. 
Co.  (1872)  50  N.  Y.  176,  Allen,  J.,  said  that  'a  statute  liability  wants  all  the 
elements  of  a  contract,  consideration  and  mutuality  as  well  as  the  assent  of 
the  party.  Even  a  judgment  founded  upon  contract  is  no  contract.'  In  Bidle- 
son  V.  Whytel,  3  Burr.  1545-1548,  it  was  held  after  great  deliberation  and 
after  consultation  with  all  the  judges,  Lord  Mansfield  speaking  for  the  court, 
'that  a  judgment  is  no  contract,  nor  can  be  considered  in  the  light  of  a  con- 
tract, for  judicium  redditur  in  invitum.'  *  *  *  But  in  some  decided  cases, 
and  in  text-books,  judges  and  jurists  have  frequently,  and,  as  I  think,  without 
strict  accuracy,  spoken  of  judgments  as  contracts.  They  have  been  classified 
as  contracts  with  reference  to  the  remedies  upon  them.  In  the  division  of  ac- 
tions ex  contractu  and  ex  delicto,  actions  upon  judgments  have  been  assigned 
to  the  former  class." 

38  A  portion  of  the  opinion  is  omitted. 


Sec.  2)       DISTINCTION  BETWEEN  CONTRACT  AND  QUASI  CONTRACT  4] 

ant,  who  now  moves  to  discharge  the  same  on  the  following  grounds : 
(1)  That  the  plaintiff's  cause  of  action  is  not  based  upon  an  express 
or  implied  contract ;  (2)  that  the  debt  or  obligation  is  not  shown  to 
have  been  fraudulently  contracted. 

The  statutes  of  Utah  only  permit  of  an  attachment  in  an  action  upon 
a  judgment,  or  upon  a  contract,  express  or  implied ;  and  it  is  urged  with 
much  force  that,  treating  the  action  as  in  assumpsit,  it  is  based  upon 
a  quasi  contract,  which  it  is  a  misnomer  to  call  an  implied  contract, 
wanting,  as  it  is,  in  most  of  the  elements  of  a  true  contract.  The 
whole  theory  of  contracts  implied  in  law  was  originated  for  the  pur- 
pose of  giving  a  remedy  ex  contractu  for  certain  wrongs,  and  it  does 
not  promote  clear  thinking  to  embrace  in  one  classification  two  things 
so  essentially  different  as  an  obligation  based  on  the  consent  of  the 
parties  and  one  imposed  by  law,  from  motives  of  public  policy,  fre- 
quently against  the  intention  of  the  parties.  But,  however  unscientific 
such  a  classification  is,  simple  implied  contracts  are  usually  subdivided 
into  contracts  implied  in  fact  and  contracts  implied  in  law.  The  first, 
it  is  needless  to  say,  is  a  true  contract,  the  agreement  of  the  parties 
being  inferred  from  the  circumstances ;  the  latter  but  a  duty  imposed 
by  law,  and  treated  as  a  contract  for  the  purposes  of  a  remedy  only. 
This  classification  of  implied  contracts  makes  it  difficult  to  interpret  a 
statute  where  the  term  is  used.  In  each  case  it  becomes  a  question 
whether  the  general  meaning,  or  the  more  limited,  if  more  accurate, 
meaning,  was,  by  the  legislature,  intended.  This  legislative  intent  must 
be  sought  in  the  particular  statute  in  question,  but,  in  the  absence  of 
any  light  thrown  thereon  by  the  language  or  object  of  the  statute,  or 
of  other  statutes  in  pari  materia,  it  must  be  held,  I  think,  that  the 
legislature  intended  that  meaning  which  is  commonly  assigned  to  the 
words,  even  if  such  definition  be  less  accurate  or  scientific. 

In  this  case  it  is  urged  that  the  statute  has  mentioned  judgments  and 
contracts,  express  or  implied.  That  the  expression  of  judgments,  a 
species  of  quasi  contracts,  shows  that  the  legislature  did  not  intend  to 
include  under  implied  contracts  such  contracts  as  are  implied  in  law. 
In  the  usual  classification  of  contracts,  judgments  are  classified  as 
contracts  of  record,  and  simple  contracts  are  subdivided  into  express 
contracts  and  implied  contracts;  and  I  think  that  it  was  the  memory 
of  this  classification  which  caused  the  framers  of  the  statute  to  treat 
judgments  as  different  from  implied  contracts.  There  is  nothing  in  the 
object  of  the  statute  which  warrants  the  inference  that  it  was  in- 
tended to  discriminate  in  favor  of  tlie  wrongdoer.  There  is  a  plain 
reason  why  attachments  were  not  permitted  in  actions  sounding  in 
damages,  for,  if  allowed  in  such  actions,  property  of  the  defendant 
might  be  incumbered  in  an  amount  altogether  out  of  proportion  to 
the  sum  finally  recovered.  But  in  assumpsit,  where  the  tort  is  waived, 
the  sum  sued  for  is  the  benefit  unjustly  retained  by  the  defendant;  not 
the  damage  to  the  plaintiff,  usually  more  uncertain  in  amount.  Keener, 
Quasi  Cent.  160.    There  is  nothing  in  the  wording  of  the  statute  which 


42  INTRODUCTORY NATURE  OF  QUASI  CONTRACT       (Ch.  1 

would  warrant  a  holding  that  the  legislature  used  the  term  "implied 
contract"  in  other  than  its  usual  meaning,  or  that  contracts  implied 
in  law  were  not  intended  to  be  included.  The  weight  of  authority 
supports  this  conclusion. 

The  question  was  raised  in  Bank  v.  Fonda,  65  Mich.  533-536,  32 
N.  W.  664,  665 — a  case  similar  to  this,  and  under  a  similar  statute — 
and  Chief  Justice  Campbell,  in  giving  judgment,  said:  "It  is  sufficient 
to  say  that,  when  the  statute  gives  the  remedy  in  cases  of  express  and 
implied  contract,  we  have  no  authority  to  graft  an  exception  on  the 
statute,  and  hold  that  there  are  differences  in  implied  contracts;  and 
that,  where  an  action  of  tort  will  lie,  tlie  fact  that  assumpsit  will  also 
He  does  not  make  the  case  one  of  contract.  This  distinction,  if  attempt- 
ed, would  lead  to  great  confusion.  In  cases  of  bailment,  there  has  al- 
ways been  a  choice  of  forms  of  action  between  actions  on  the  case  and 
assumpsit,  which  is  itself  really  an  action  on  the  case.  Case  lies  for 
breach  of  duty,  and  assumpsit  for  breach  of  promise.  A  duty  cer- 
tainly arises  out  of  promises;  and  the  law  implies  a  promise  out  of 
most  duties.  Whatever  authorizes  the  implication  of  a  promise  au- 
thorizes a  suit  in  assumpsit  for  its  breach.  That  is  the  essence  of  the 
doctrine  of  implied  assumpsit,  and  any  further  refinement  on  this 
doctrine  would  lead  to  no  good  end.  There  is  no  such  equity  in  favor 
of  wrongdoers  that  exceptions  should  be  created  in  their  favor."  To 
the  same  effect  are  Elwell  v.  Martin,  32  Vt.  217,  and  Gould  v.  Baker, 
12  Tex.  Civ.  App.  699,  35  S.  W.  708."  The  authorities  are  collected  in 
3  Am,  &  Eng.  Enc.  Law,  192. 

In  Fuel  Co.  v.  Tuck,  53  Cal.  304,  the  defendant  agreed  to  manu- 
facture certain  machines  for  plaintiff,  and  deliver  them  within  a  speci- 
fied time.  A  part  of  the  purchase  money  was  advanced  to  defendant, 
who  failed  to  complete  the  machines  within  the  time  limited.  The 
plaintiff  thereupon  sued  to  recover  the  money  advanced,  upon  the 
ground  that  the  consideration  upon  which  it  was  paid  had  wholly 
failed.  An  attachment  was  sued  out  in  aid  of  the  action,  and  defend- 
ant sought  to  have  the  same  discharged,  for  the  reason  that  the  cause 
of  action  did  not  arise  upon  a  contract  express  or  implied.  The  court 
said  that  "the  authorities  appear  to  be  uniform  to  the  effect  that,  where 
a  sum  of  money  has  been  paid  upon  a  consideration  which  has  en- 
tirely failed,  the  law  implies  a  promise  to  refund  it" ;  and  the  attach- 
ment was  sustained. 

In  Tabor  v.  Mining  Co.  (C.  C.)  14  Fed.  636,  Judge  Hallett,  in  con- 
cluding that  the  Colorado  statute  did  not  permit  an  attachment  in  a 
suit  for  the  proceeds  of  ore  converted  by  defendant, — a  result  clearly 
warranted  by  the  course  of  legislation  on  the  subject  in  Colorado,  as 

37  In  the  case  last  cited  the  court  held:  "Wliere  an  action  against  a  thief 
to  recover  judgment  for  stolen  money  is  brought  as  for  money  had  and  re- 
ceived upon  an  implied  promise,  the  tort  is  thereby  waived,  and  the  action 
will  be  regarded  as  one  ex  contractu,  in  which  an  attachment  against  the 
property  of  the  defendant  vpill  lie." 


Sec.  2)       DISTINCTION  BETWEEN  CONTRACT  AND  QUASI  CONTRACT  43 

shown  in  the  opinion, — distinguished  the  case  of  Fuel  Co.  v.  Tuck  by 
saying  that  the  impHed  contract  in  that  case  "may  be  assigned  to  the 
class  of  tacit  agreements  already  mentioned,  which,  if  not  expressed 
in  words,  are  evincible  from  the  acts  of  the  parties,  and  stand  fully 
within  their  intention."  The  case  at  bar  can  be  similarly  distinguished 
from  Tabor  v.  Mining  Co.  Wherever  a  definite  duty  arises  out  of  a 
contract  or  contract  relation,  a  promise  to  perform  that  duty  may, 
without  violence,  be  considered  as  a  term  of  the  contract  implied  in 
fact.  A  principle  of  law  attaches  it  to  the  contract,  and  the  parties  are 
conclusively  presumed  to  contract  with  reference  to  such  principle. 

In  Pollock  on  Contracts,  p.  11,  in  discussing  this  question,  the  au- 
thor says:  "Sometimes,  no  doubt,  it  is  difficult  to  draw  the  line. 
'Where  a  relation  exists  betv/een  two  parties  which  involves  the  per- 
formance of  certain  duties  by  one  of  them,  and  the  payment  of  reward 
to  him  by  the  other,  the  law  will  imply  (fictitious  contract)  or  the  jury 
may  infer  (true  contract)  a  promise  by  each  party  to  do  what  is  to  be 
done  by  him.'  Morgan  v.  Ravey  (1861)  6  Hurl.  &  N.  265.  It  was 
held  in  the  case  cited  that  an  innkeeper  promises  in  this  sense  to  keep 
his  guest's  goods  safely.  The  case  of  a  carrier  is  analogous.  So 
where  A.  does,  at  B.'s  request,  something  not  apparently  illegal  or 
wrongful,  but  which  in  fact  exposes  A.  to  an  action  at  the  suit  of  a 
third  person,  it  seems  to  be,  not  a  proposition  of  law,  but  an  inference 
of  fact  which  a  jury  may  reasonably  find,  that  B.  must  be  taken  to 
have  promised  to  indemnify  A.  Dugdale  v.  Lovering  (1875)  L.  R.  10 
C.  P.  196." 

In  this  case  the  complaint  shows  an  employment  of  defendant  as 
the  plaintiff's  agent,  a  custody  by  him,  in  the  course  of  his  employment, 
of  the  plaintiff's  money,  and  a  failure  to  pay  the  same  to  the  plaintiff 
on  demand.  It  may  be  said  that  the  duty  to  pay  the  money  arose  out 
of  the  contract  of  employment,  and  the  failure  so  to  do  was  a  violation 
of  that  contract.    Bank  v.  Fonda,  65  Mich.  533-536,  2>2  N.  W.  664. 

As  to  the  second  ground  on  which  the  motion  is  based,  it  appears 
that  in  the  affidavit  the  cause  of  attachment  is  set  out  in  the  language 
of  the  statute,  but  that  the  facts  showing  that  the  debt  was  fraudu- 
lently contracted,  or  the  obligation  fraudulently  incurred,  are  not  stat- 
ed. The  statement  of  the  cause  of  attachment  in  the  language  of  the 
statute,  and  without  setting  out  the  specific  acts  of  fraud,  has  been  very 
generally  held  sufficient.  Auerbach  v.  Hitchcock,  28  Minn.  73,  9  N. 
W.  79;  Sharpless  v.  Ziegler,  92  Pa.  467;  Stevens  v.  Middleton,  26  Plun 
(N.  Y.)  470;  Wap.  Attachm.  ,§§  122,  123.     *     *     * 

The  motion  to  discharge  the  attachment  is  denied,^* 

3  8  In  First  National  Bank  of  Nasliua  v.  Van  VoorLs  (1895)  6  S.  D.  54S,  62  N. 
W.  378,  it  was  held  that  a  judgment  of  a  sister  state  is  to  be  deemed  a  contract 
within  a  local  statute  authorizing  the  issue  of  an  attachment  in  an  "action 
arising  upon  contract";  Kellam,  J.,  saying:  "We  are  inclined  to  regard  a 
judgment,  not  as  a  contract,  but  as  a  quasi  contract,  which  the  Legislature 
and  the  court  have  treated  as  a  contract  in  respect  to  tlie  remedy  by  subse- 
quent action  upon  it;    and  so,  as  before  suggested,  the  question  whether,  un- 


44  INTRODUCTORY NATURE  OF  QUASI  CONTRACT       (Cll.  1 

(C)  Stockholders'  Statutory  Liability 
CHRISTOPHER  v.  NORVELL. 

(Supreme  Court  of  the  United  States,  1906.     201  U.  S.  216,  26  Sup.  Ot.  502,  50 
L.  Ed.  732,  5  Aim.  Cas.  740.) 

In  Error  to  the  United  States  Circuit  Court  of  Appeals  for  the 
Fifth  Circuit  to  review  a  judgment  which  affirmed  a  judgment  of  the 
Circuit  Court  for  the  Southern  District  of  Florida,  enforcing,  as  against 
a  married  woman,  the  statutory  liability  of  a  stockholder  in  a  national 
bank. 

Mr.  Justice  Harlan  delivered  the  opinion  of  the  court.^® 
By  the  Revised  Statutes  of  the  United  States  it  is  provided  tliat  the 
shareholders  of  every  national  banking  association  shall  be  held  indi- 
vidually responsible,  equally  and  ratably,  and  not  one  for  another,  for 
all  contracts,  debts,  and  engagements  of  such  association,  to  the  extent 
of  the  amount  of  their  stock  therein,  at  the  par  value  thereof,  in  addi- 
tion to  the  amount  invested  in  such  shares ;  that  persons  holding  stock 
as  executors,  adrninistrators,  guardians,  or  trustees  shall  not  be  per- 
sonally subject  to  any  liabilities  as  stockholders,  the  estates  and  funds 
in  their  hands  being  liable  in  like  manner  and  to  the  same  extent  as 
the  testator,  intestate,  ward,  or  person  interested  in  such  trust-funds 
would  be  if  living  and  competent  to  act  and  hold  the  stock  in  his  own 
name;  and  that  a  receiver  of  a  national  bank  may,  if  necessary,  to  pay 
the  debts  of  such  association,  enforce  the  individual  liability  of  the 

der  our  statute,  an  attachment  may  issue  in  an  action  on  a  judgment  depends 
upon  the  sense  in  which  the  Legislature  used  the  expression,  'action  arising 
on  contract.'  If  used  in  the  exact  and  literal  sense,  an  action  on  a  judgment 
would  not,  in  our  opinion,  he  included ;  hut  if  used  in  a  general  and  leading 
sense,  to  distinguish  actions  of  one  class  from  those  of  the  other,  then  the  ex- 
pression must  be  presumed  to  have  been  used  in  view  of  the  common  under- 
standing and  practice  that  actions  on  judgments  were  actions  on  contracts. 
I  think  the  same  meaning  was  intended  here,  as  by  the  same  words  in  section 
4915  [Comp.  Laws  3887],  providing  that  a  cause  of  action  'arising  on  contract' 
may  be  pleaded  as  a  counterclaim." 

The  United  States  Couet  of  Claims  is  given  jurisdiction  of  "all  claims 
founded  upon  ♦  *  *  any  contract,  expressed  or  implied,  with  the  government 
of  the  United  States,  or  for  damages,  liquidated  or  unliquidated,  in  cases  not 
somiding  in  tort.  •  *  *  "  Act  March  3,  1SS7,  c.  359,  24  Stat.  505  (Comp.  St. 
1913,  §  1136[1]).  This  statute  has  been  held  not  to  include  claims  in  quasi 
contract  based  on  a  waiver  of  a  tort,  but  only  those  founded  on  "a  convention 
between  the  parties — a  coming  together  of  the  minds."  Schillinger  v.  United 
States  (1894)  155  U.  S.  163,  15  Sup.  Ct.  85,  39  L.  Ed.  108;  Harley  v.  United 
States  (1905)  198  U.  S.  229,  25  Sup.  Ct.  634,  49  L.  Ed.  1029.  But  the  Supreme 
Court  has  gone  far  in  finding  an  actual  contract.  United  States  v.  Society 
Anonyme  Des  Anciens  Etablissements  Call  (1912)  224  U.  S.  309,  32  Sup.  Ct. 
479,  56  L.  Ed.  778;  United  States  v.  Buffalo  Pitts  Co.  (1914)  234  U.  S.  228,  34 
Sup.  Ct.  840,  58  L.  Ed.  1290. 

An  amendment  of  1910  confers  jurisdiction  upon  the  Court  of  Claims  in 
cases  involving  the  unauthorized  use  of  a  patented  invention  by  an  officer  of 
the  United  States.  See  Crozier  v.  Krupp  (1911)  224  U.  S.  290,  32  Sup.  Ct.  488, 
56  L.  Ed.  771. 

s»  Portions  of  the  opinion  are  omitted. 


Sec.  2)       DISTINCTION  BETWEEN  CONTRACT  AND  QUASI  CONTRACT  •        45 

Stockholders.  Rev.  Stat.  §§  5151,  5152,  5234,  U.  S.  Comp.  Stat.  1901, 
pp.  3465,  3507, 

Proceeding  under  these  statutes  the  receiver  of  the  First  National 
Bank  of  Florida  brought  this  action  against  Henrietta  S.  Christopher 
(her  husband,  John  G.  Christopher,  being  joined  as  codefendant)  to 
recover  tlie  amount  due  from  her  as  a  shareholder  of  that  bank  under 
an  assessmeni  made  by  the  Comptroller  of  the  Currency  against  the 
stockholders  of  that  bank  in  order  to  pay  its  debts. 

The  case  made  by  the  record  is  this :  At  the  time  of  the  failure  of 
the  bank,  on  March  14,  1903,  fifteen  shares  of  its  stock  stood  in  the 
name  of  Mrs.  Christopher.  The  stock  was  bequeathed  to  her  by  her 
father  in  1886,  and  his  executors  caused  it  to  be  transferred  to  her 
name  on  the  books  of  the  bank.  This  was  done  without  any  request 
from  or  direction  by  her.  Although  not  aware  of  such  transfer  until 
the  stock  had  been  issued  and  delivered  to  her  in  November,  1887, 
since  that  date  she  has  held  the  certificate  for  the  fifteen  shares.  It 
is  shown  that  in  1894,  she  joined  with  other  shareholders  in  securing 
an  amendment  of  the  bank's  articles  of  association,  which  extended  the 
corporate  existence  of  the  bank  until  the  close  of  business  on  May  26th, 
1914.  It  further  appears  that  she  received  several  semiannual  divi- 
dends, from  three  to  five  per  cent.,  on  her  stock.     *     *     * 

A  personal  judgment  was  rendered  in  the  circuit  court  against  Mrs. 
Christopher  for  the  amount  due  on  the  assessment  made  by  tlie  Comp- 
troller. The  judgment  was  affirmed  by  the  circuit  court  of  ap- 
peals.    *     *     * 

Did  the  coverture  of  Mrs.  Christopher  at  the  time  her  name  was 
placed  on  the  books  of  the  bank  as  a  shareholder,  as  well  as  when  she 
received  tlie  certificate  of  stock,  protect  her  against  a  personal  judg- 
ment at  law  for  the  amount  due  under  the  assessment  made  by  tlie 
Comptroller  of  the  Currency  ?  That  is  the  controlling  question  in  the  case. 

This  question  is,  we  think,  substantially  answered  by  the  judgment 
of  this  court  in  Keyser  v.  Hitz,  133  U.  S.  138,  150-152,  33  L.  Ed.  531, 
537,  538,  10  Sup.  Ct.  290,  294,  295.     *     *     * 

The  argument  is  that  at  common  law  a  married  woman  could  not 
make,  or  bind  herself  personally  by,  a  contract,  and  was  incapable,  by 
the  law  of  Florida,  as  at  common  law,  of  entering  into  a  contract,  at 
least  one  that  would  subject  her  to  personal  liability;  that  the  relation 
of  a  shareholder  to  a  national  banking  association  was  of  a  contractual 
character;  and  consequently,  to  render  a  personal  judgment  against  the 
defendant  Mrs.  Christopher  was,  in  eft'ect,  to  hold  her  personally 
bound  by  a  contract  which,  under  the  laws  of  Florida,  she  was  incapa- 
ble of  making. 

The  vice  in  this  argument  is  in  the  assumption  that  the  liability  of 
]Mrs.  Christopher  as  a  shareholder  arises  wholly  out  of  contract  be- 
tween Iierself  and  the  bank  or  its  creditors ;  whereas,  upon  becoming  a 
shareholder,  she  made,  strictly,  no  direct  contract  with  anyone,  and 
became,  as  was  held  in  Keyser  v.  Hitz,  supra,  by  force  of  the  statute 
individually  responsible  to  the  amount  of  her  stock,  for  the  contracts, 


46   '       INTRODUCTORY NATURE  OF  QUASI  CONTRACT       (Ch,  1 

debts,  and  engagements  of  the  bank  equally  and  ratably  with  other 
shareholders.  Such  statutory  liability  was  created  for  the  protection 
of  creditors,  and  in  order  to  strengthen  the  bank  in  the  confidence  of 
the  public.  The  bank,  although  its  shares  of  stock  were  private  prop- 
erty, was  an  instrumentality  of  the  general  government  in  the  conduct 
of  its  affairs.  Farmers'  &  M.  Nat.  Bank  v.  Bearing,  91  U.  S.  29,  33,  23 
L.  Ed.  196,  198.  In  Davis  v.  Elmira  Sav.  Bank,  161  U.  ^.  275,  283,  40 
L.  Ed.  700,  701,  16  Sup.  Ct.  502,  503,  the  court  said  that  "national 
banks  are  instrumentalities  of  the  Federal  government,  created  for  a 
public  purpose,  and  as  such  necessarily  subject  to  the  paramount  au- 
thority of  the  United  States."  This  principle  was  reaffirmed  in  Easton 
v.  Iowa,  188  U.  S.  220,  237,  47  L.  Ed.  452,  459,  23  Sup.  Ct.  288.  See, 
also.  Pacific  Nat.  Bank  v.  Mixter,  124  U.  S.  721,  31  L.  Ed.  567,  8  Sup. 
Ct.  718.     *     *     * 

In  Robinson  v.  Turrentine  (C.  C.)  59  Fed.  554,  555,  it  was  held  that 
the  liability  of  a  married  woman  for  an  assessment  upon  national 
bank  stock  did  not  grow  out  of  contract,  although  it  was  one  of  a 
class  of  liabilities  which  may  be  enforced  by  an  action  in  form  ex  con- 
tractu.    *     *     * 

Recurring  to  the  provisions  in  the  statute  and  Constitution  of  Flor- 
ida it  is  clear  that  they  do  not  incapacitate  a  married  woman  in  that 
state  from  becoming  the  owner,  by  bequest  or  otherwise,  of  stock  in 
a  national  banking  association.  On  the  contrary,  it  seems  that  all 
property,  real  or  personal,  owned  by  a  married  woman  before  marriage, 
or  lawfully  acquired  afterward  by  gift,  devise,  bequest,  descent,  or  pur- 
chase, is  her  separate  property.  Nevertheless,  it  is  said,  by  the  settled 
course  of  decisions  in  that  state  a  married  woman  cannot  bind  herself 
personally  by  contract  at  law  or  in  equity,  or  by  becoming  a  partner, 
or  by  making  a  promissory  note.  Dollner  v.  Snow,  16  Fla.  86 ;  Hodges 
V.  Price,  18  Fla.  342;  Goss  v.  Furman,  21  Fla.  406;  De  Graum  v. 
Jones,  23  Fla.  83,  6  South.  925,  and  Randall  v.  Bourgardez,  23  Fla. 
264,  2  South.  310,  11  Am.  St.  Rep.  379.  But  those  cases  are  not  in 
point  here ;  for,  in  each  of  them,  the  personal  liability  attempted  to 
be  imposed  upon  the  married  woman  arose  entirely  out  of  contract, 
express  or  implied,  on  her  part,  and  not  by  force  of  any  statute. 

The  argument  made  in  this  case  in  behalf  of  Mrs.  Christopher  as- 
sumes that  the  liability  sought  to  be  fastened  upon  her  arises  wholly 
out  of  contract;  that  is,  out  of  an  implied  obligation,  at  the  time  her 
name  was  placed  on  the  registry  of  shares  and  she  received  dividends, 
to  contribute  to  the  extent  of  the  value  of  such  shares  to  the  payment 
of  the  debts  of  the  bank.  But  that  implied  obligation,  although  con- 
tractual in  its  nature,  could  not,  standing  alone,  be  made  the  basis  of 
this  action.  Without  the  statute  she  could  not  be  made  liable  indi- 
vidually for  the  debts  of  the  bank  at  all.  No  implied  obligation  to 
contribute  to  the  payment  of  such  debts  could  arise  from  the  single 
fact  that  she  became  and  was  a  shareholder.  Her  liability  for  the 
debts  of  the  bank  is  created  by  the  statute,  although  in  a  limited  sense 


Sec.  2)       DISTINCTION  BETWEEN  CONTRACT  AND  QUASI  CONTRACT  47 

there  is  an  element  of  contract  in  her  having  become  a  shareholder; 
and  the  right  of  the  receiver  to  maintain  this  action  depends  upon,  and 
has  its  sanction  in,  the  statute  creating  liability  against  each  share- 
holder, in  whatever  way  he  may  have  become  such.  There  have  been 
cases  in  which  there  appeared  such  elements  of  contract  as  were  deemed 
sufficient,  in  particular  circumstances,  to  support  an  action.  First  Nat. 
Bank  V.  Hawkins,  174  U.  S.  364,  372,  43  L.  Ed.  1007,  1011,  19  Sup. 
Ct.  739;  Whitman  v.  National  Bank,  176  U.  S.  559,  565,  566,  44  L.  Ed. 
587,  591,  592,  20  Sup.  Ct.  477;  Matteson  v.  Dent,  176  U.  S'.  521,  44  L. 
Ed.  571,  20  Sup.  Ct.  419.  But  that  fact  does  not  justify  the  contention 
that  an  action  upon  an  assessment  made  by  the  Comptroller  is  not 
based  upon  tlie  statute.     *     *     * 

.  All  shareholders  of  stock  in  national  banks  become  such,  subject  to 
the  condition,  declared  by  statute,  that  liability,  to  the  extent  of  their 
shares,  is  imposed  upon  them  for  the  contracts,  debts,  and  engage- 
ments of  the  bank.  The  statute,  in  effect,  says  to  all  who  become 
owners  of  national  bank  stock,  no  matter  in  what  way  they  become 
shareholders,  that  they  cannot  enjoy  the  benefits  accruing  to  share- 
holders, and  escape  liability  for  the  contracts,  debts,  and  engagements 
of  the  bank.  In  other  words,  the  government  that  created  the  bank 
has  prescribed  the  terms  upon  which  ownership  of  its  shares  could  be 
acquired,  and  individual  liability  incurred  by  shareholders, — executors, 
administrators,  guardians,  or  trustees  only  being  exempted  from  indi- 
vidual liability.  No  exception  is  made  in  favor  of  married  women 
holding  property.  If  the  Constitution  or  statutes  of  Florida  had  ex- 
pressly incapacitated  or  forbidden  a  married  woman  from  becoming, 
under  any  circumstances,  the  owner  of  bank  shares, — as  counsel  for 
plaintiff  in  error  insists  is  the  case, — a  question  would  be  presented 
that  does  not  arise  upon  the  record  of  this  case ;  and  as  the  local  law 
does  not  forbid  married  women  from  becoming  the  owners  of  bank 
stock,  we  do  not  go  beyond  what  is  necessary  for  the  decision  of  the 
present  case  under  the  national  banking  law.  All  that  we  now  decide 
is  that  the  court  below  properly  interpreted  the  statute,  and  did  not 
err  in  rendering  a  personal  judgment  against  Mrs.  Christopher,  as  a 
shareholder  in  the  bank,  for  the  amount  due  under  the  assessment  of 
the  Comptroller.  In  what  way  the  plaintiff  may  proceed  in  order  to 
obtain  satisfaction  oi  the  judgment  is  not  a  question  to  be  determined 
in  this  action. 

Judgment  affirmed. 

Mr.  Justice  White  and  Mr.  Justice  McKe;nna  concur  in  the  result.**' 

4  0  In  Hen  eke  v.  TAVomey  (1S94)  58  Minn.  550,  60  N.  W.  GG7,  it  appeared  that 
an  action  had  been  brought  and  a  judgment  obtained  in  the  state  court  by  the 
receiver  of  the  First  National  Bank  of  Dulutli  for  the  recovery  of  an  assess- 
ment against  a  nonresident  stockholder  owning  real  property  within  the  state. 
iSuch  defendant  had  been  served  by  publication.  Mitchell,  J.,  said:  "I'nder 
the  statute  then  in  force,  in  actions  for  the  recovery  of  money  the  summons 
could  be  served  on  a  nonresident  by  publication  only  when  the  action  arose  on 
contract;   and  it  is  urged  that  tlie  judgment  referred  to  was  void  because  au 


48  INTRODUCTORY NATDRK  OF  QUASI  CONTRACT       (Ch.  1 

(D)  Contract  Clause  of  Federal  Constitution 

McAFEE  V.  COVINGTON. 
(Supreme  Court  of  Georgia,  1883.     71  Ga.  272,  51  Am.  Rep.  263.) 

Covington  et  al.  filed  their  bill  against  McAfee  et  al.  to  enjoin  the 
sale  of  certain  property  claimed  as  homestead  property.  Subsequently, 
by  amendment,  it  was  alleged  that  the  sheriff  had  offered  the  property 
at  public  outcry,  tliat  it  was  bid  off  by  certain  purchasers,  and  the 
sheriff  would  proceed  to  put  them  in  possession  unless  injunction  issue. 
The  controlling  facts  were  as  follows:  In  1867,  a  judgment  in  a  tro- 
ver case  for  a  mule  was  rendered  against  Covington.  In  1869  he  took 
a  homestead  under  the  constitution  of  1868,  and  subsequently  went 
into  bankruptcy ;  but  the  creditor  did  not  prove  the  claim.  The  execu- 
tion founded  on  this  judgment  was  subsequently  levied  on  the  home- 
stead, and  it  was  claimed  that  the  homestead  was  subject,  because 
otherwise  the  homestead  act  of  1868  would  impair  the  obligation  of  a 
contract,  and  be  obnoxious  to  the  constitution  of  the  United  States. 
Article  1,  §  10,  par.  1. 

The  chancellor  held  that  a  judgment  based  on  a  tort  was  not  a  con- 
tract, and  granted  the  injunction.    Defendants  excepted. 

Hall,  J.  The  question  to  be  determined  here  is,  whether  a  judg- 
ment consequent  upon  an  action  for  a  tort,  growing  out  of  the  wrong- 
ful conversion  of  personal  property,  is  a  contract  within  the  meaning  of 
article  1,  §  10,  par.  1,  of  the  constitution  of  the  United  States,  which 
forbids  a  state  to  pass  any  law  impairing  the  obligation  of  a  contract. 
The  execution  under  which  the  homestead  exemption  was  sold,  was 
obtained  prior  to  the  adoption  of  the  state  constitution  of  1868.  If, 
therefore,  that  judgment  was  the  result  of  a  suit  founded  upon  a  con- 
tract, tlien,  according  to  the  case  of  Gunn  v.  Barry,  15  Wall.  610,  21 
L.  Ed.  212,  the  homestead  set  apart  to  the  defendant  therein  was 
subject  to  levy  and  sale,  notwithstanding  the  prohibition  contained  in 

action  against  a  stockholder  of  a  corporation  to  recover  on  his  personal  lia- 
bility, under  the  statute,  for  the  debts  of  a  corporation,  is  not  one  'ax-ising  on 
contract.'  Gen.  St.  1S6G,  c.  66,  §  45.  The  point  is  not  well  taken.  Upon  be- 
coming a  stockholder,  the  party  assumes  the  obligations  imposed  by  the  stat- 
ute, which  forms  a  part  of  the  contract.  The  contract  is  one  implied  by  stat- 
ute. While  tlie  action  of  the  Comptroller  in  making  the  assessment  is  essen- 
tial to  the  receiver's  right  of  action,  yet  it  is  not  the  ground  of  the  stockholder's 
liability.     His  liability  grows  out  of  his  implied  contract." 

Compare  McClaine  v.  Rankin  (1905)  197  U.  S.  154,  25  Sup.  Ct.  410,  40  L. 
Ed.  702,  3  Ann.  Cas.  500,  where  it  was  held  in  construing  the  statute  of  limita- 
tions that  an  action  to  enforce  the  statutory  liability  of  a  stockholder  of  a 
national  bank  was  not  "an  action  upon  a  contract  or  liability,  express  or  im- 
plied." White,  J.,  dissented,  pointing  out  that  this  decision  seems  inconsistent 
with  the  earlier  decision  of  the  same  court  in  Carrol  v.  Green  (1875)  92  U.  S. 
509,  23  L.  I'^d.  738.     See  5  Columbia  Law  Review,  606. 

As  to  whether  the  statutory  liability  of  stockholders  for  the  "debts"  of  the 
corporation  includes  quasi  contractual  obligations,  see  Avery  &  Son  v.  McClure 
(1908)  94  xMiss.  172,  47  South.  901,  22  L.  R.  A.  (N.  S.)  250  (with  note),  19  Ann. 
'Jas.  134. 


Sec.  2)       DISTINCTION  BETWEEN  CONTRACT  AND  QUASI  CONTRACT  49 

the  constitution  of  1868,  and  the  injunction  prayed  in  this  case  should 
not  have  been  ordered;  but  if  it  was  not  rendered  in  a  suit  upon  a 
contract,  as  it  evidently  was  not,  then  the  propriety  of  ordering  the 
injunction  will  depend  upon  the  further  question,  whether  such  a  judg- 
ment was  of  itself  a  contract  between  the  parties  thereto.  That  it  is  a 
"debt  of  record"  will  not  be  disputed.  In  order  to  constitute  a  con- 
tract, there  must  be  an  agreement,  either  express  or  implied,  between 
parties,  for  the  doing  or  not  doing  of  some  specific  thing.  Code  1882, 
§  2714.  This  agreement  becomes  a  contract  of  record  when  it  has  been 
declared  and  adjudicated  by  a  court  having  jurisdiction,  or  when  it  is 
"entered  of  record,  in  obedience  to,  or  in  carrying  out,  the  judgment  of 
a  court."  Code  1882,  §  2716.  It  is  essential  to  a  contract  that  the 
parties  assent  to  its  terms.  Id,  §§  2720,  2727.  How  can  this  be  predi- 
cated of  a  tort  to  either  person  or  property?  In  Todd  v.  Crumb,  5 
McLean,  172,  Fed.  Cas.  No.  14,073,  it  was  distinctly  held  that  a  judg- 
ment was  not  an  agreement,  contract  or  promise  in  writing.  So,  also, 
in  Bidleson  v.  Whytel,  3  Burrow's  R.  1548.  In  Garrison  v.  New  York, 
21  Wall.  203,  22  L.  Ed.  612,  it  was  said  by  Field,  J.,  who  delivered  the 
opinion:  "It  may  be  doubted  whether  a  judgment  founded  on  an 
agreement,  express  or  implied,  is  a  contract  within  the  meaning  of  the 
constitutional  prohibition.  It  is  sometimes  called  by  text  writers  a 
contract  of  record,  because  it  establishes  a  legal  obligation  to  pay  the 
amount  recovered,  and,  by  a  fiction  of  law  where  there  is  a  legal  obliga- 
tion to  pay,  a  promise  to  pay  is  implied.  [It  is  upon  this  principle, 
says  Chitty,  that  an  action  in  form  ex  contractu  will  lie  on  a  judgment 
of  a  court  of  record. ^^]  But  it  is  not  perceived  how  this  fiction  can 
convert  the  result  of  a  proceeding  not  founded  on  an  agreement,  ex- 
press or  implied,  but  upon  a  transaction  wanting  the  assent  of  the 
parties,  into  a  contract,  within  the  meaning  of  the  Federal  constitution, 
which  forbids  any  legislation  impairing  its  obligation.  The  purpose 
of  the  constitutional  prohibition  was  the  maintenance  of  good  faith  in 
the  stipulations  of  parties  against  any  state  interference.  If  no  assent 
be  given  to  a  transaction,  no  faith  is  pledged  with  respect  to  it,  and 
there  would  seem  in  such  a  case  to  be  no  room  for  the  operation  of  the 
prohibition."  It  seems  to  have  been  long  settled  that  claims  arising 
from  a  tort,  and  not  from  a  contract,  are  not  protected  from  legislative 
interference  by  this  provision  of  the  constitution  of  the  United  States. 
Dash  V.  Van  Kleeck,  7  Johns.  (N.  Y.)  477,  5  Am.  Dec.  291 ;  Amy  v. 
Smith,  1  Litt.  (Ky.)  326;  Thayer  v.  Seavey,  11  Me.  284.  In  Robinson 
V.  Howe,  13  Wis.  341,  it  is  distinctly  held,  that  "those  rights  which  the 
law  gives  to,  or  obligations  which  it  imposes  upon  persons  in  certain 
relations,  independently  of  any  stipulations  which  the  parties  them- 
selves have  made,"  are  not  witliin  the  protection  of  this  clause.     An 

<i  The  sentence  inclosed  in  brackets  is  omitted  in  the  quotation  in  McAfee 
V.  Covington,  but  is  found  at  this  place  in  the  report  of  Garrison  v.  New  YorlJ 
(1874)  21  Wall.  196,  203,  22  L.  Ed.  612. 

Thubs.Quasi  Cont.— 4 


50  INTRODUCTORY NATURE  OF  QUASI  CONTRACT       (Cll.  1 

uninterrupted  and  unbroken  current  of  authorities  has  settled  that  a 
state  may  pass  laws  divesting  vested  rights,  not  connected  with  and 
forming  an  essential  part  of  the  obligation  of  a  contract,  without  in- 
fringing the  constitution  of  the  United  States.  Among  many  others, 
we  cite  Charles  River  Bridge  v.  Warren  Bridge  Co.,  11  Pet.  420,  9  L. 
Ed.  77Z;  Watson  v.  Mercer,  8  Pet.  88,  8  L.  Ed.  876;  Satterlee  v.  Mat- 
thewson,  2  Pet.  413,  7  L.  Ed.  458.  For  a  full  and  satisfactory  review 
of  the  authorities  upon  the  questions  raised  in  this  case,  we  refer  to 
the  exhaustive  and  able  opinion  of  Fenner,  J.,  in  the  State  ex  rel.  Fol- 
sofn  Bros.  v.  Mayor,  etc.,  of  New  Orleans,  32  La.  Ann.  709,  714-717, 
and  also  to  Forsyth  v.  Marbury,  R.  M.  Charlt.  (Ga.)  324.  The  counsel 
for  the  plaintiffs  in  error  relied  with  much  confidence  upon  an  ex- 
pression used  by  Warner,  C.  J.,  in  his  dissenting  opinion,  in  Fannin  v. 
Durden,  54  Ga.  482,  in  which  it  is  contended  he  broadly  asserted  that 
a  judgment  was  a  contract  of  record,  and  that  an  act  of  the  legislature 
which  authorized  proceedings  to  reduce  its  amount  was  repugnant  to 
this  clause  of  the  constitution  of  the  United  States,  and  was  a  mere 
nullity;  but  we  apprehend  that  this  eminent  judge  never  meant  to  carry 
this  principle  to  the  extent  claimed.  He  was  laying  down  the  law 
applicable  to  the  case  before  him,  which  was  a  judgment  in  a  suit 
founded  on  a  promissory  note  made  before  the  commencement  of  the 
late  war,  for  good  money  loaned  to  the  maker  of  the  note.  This 
amount,  although  in  judgment,  had  been  reduced  to  conform  to  the 
standard  of  Confederate  values,  under  the  second  section  of  the  so- 
called  "Relief  Act"  of  1868,  and  upon  a  motion  to  set  aside  the  judg- 
ment so  reducing  the  amount  of  the  former  judgment,  and  which  came 
up  for  review  before  this  court,  the  chief  justice  used  the  language 
cited.  He  was  not  deahng  with  the  power  of  the  legislature  to  modify 
and  prevent  the  enforcement  of  judgments  founded  on  torts,  against 
homesteads  and  exemptions  set  apart  to  heads  of  families  for  the  use 
and  support  of  such  families,  and  we  are  reluctant  to  conclude  that  he 
would  have  so  applied  the  principle.  Indeed,  he  does  not  seem  to 
have  considered  how  far  the  legislature  had  the  power  to  interfere 
with  vested  rights,  without  encroaching  upon  the  provision  of  the  con- 
stitution of  the  United  States  which  protects  the  obligation  of  con- 
tracts from  such  interference. 

On  the  question  here  considered  we  rest  our  judgment  in  this  case, 
not  deeming  it  either  necessary  or  proper  to  pass  upon  the  other  im- 
portant questions  raised  by  the  record,  and  particularly  upon  the  ef- 
fect of  the  homesteader's  discharge  in  bankruptcy,  upon  the  judgment 
making  the  sale  of  his  homestead ;  for  the  purposes  of  this  case,  it 
is  quite  immaterial  whether  it  was  extinguished  by  the  discharge  or 
not. 

Judgment  affirmed.*^ 

42  In  Freeland  v.  Williams  (1889)  131  U.  S.  405,  9  Sup.  Ct  763,  33  L.  Ed. 
193,  the  facts  were  as  follows:  The  West  Virginia  constitution  of  1872  ex- 
empted persons  from  civil  liability  for  acts  done  during  the  Civil  War  in  ac- 


Sec.  1)  BENEFITS   CONFERRED  BY   MISTAKE  51 

CHAPTER  II 
BENEFITS  CONFERRED  BY  MISTAKE 


SECTION  1.— THE  GENERAL  DOCTRINE:  MISTAKE  OF 

FACT  1 

I.  Fundamental  Distinctions 

(A)  Mutual  Mistake — Unilateral  Mistake 


POOL  V.  ALLEN. 

(Supreme  Court  of  North  Carolina,  1846.     29  N.  C.  120.) 
Appeal  from  the  Superior  Court  of  Law  of  Person  County,  at  tlie 

Fall  Term,  1846,  his  Honor  Judge  Battle  presiding. 

This  is  an  action  of  assumpsit,  commenced  by  warrant  before  a 

Justice  of  the  Peace.    It  was  tried  in  the  Superior  Court  on  the  general 

cordance  with  the  usages  of  civilized  warfare,  and  in  pursuance  of  this  provi- 
sion the  state  legislature  enacted  that  a  judgment  recovered  for  such  an  act 
should,  on  petition,  be  set  aside.  Accordingly  the  state  court,  on  petition  of 
Williams,  set  aside  a  judgment  obtained  by  Freeland  against  Williams  in  1865 
in  an  action  of  trespass  de  bonis  asportandis  for  talcing  and  converting  the 
cattle  of  Freeland  under  command  of  General  I^e  of  the  Confederate  Army. 
Freeland's  petition  for  an  appeal  to  the  Supreme  Court  of  Appeals  of  the 
State  of  West  Virginia  having  been  by  that  court  denied,  Freeland  then 
brought  a  writ  of  error  in  the  United  States  Supreme  Court  It  was  there 
held  that  such  judgment  in  tort  was  not  within  the  protection  of  the  clause  of 
the  Federal  Constitution  forbidding  the  impairment  by  a  state  of  the  obliga- 
tion of  contract. 

In  Louisiana  ex  rel.  Folsom  v.  Mayor  of  New  Orleans  (1SS3)  109  U.  S.  285, 

3  Sup.  Ct.  211,  27  L.  Ed.  936,  it  was  held  that  a  judgment  obtained  pursuant 
to  a  state  statute  against  a  municipality  for  injuries  to  property  done  by  mob 
violence  was  not  protected  by  the  Federal  Constitution.  Mr.  Justice  Field, 
in  speaking  for  the  court,  said :  "The  right  to  reimbursement  for  damages 
caused  by  a  mob  or  riotous  assemblage  of  people  is  not  founded  upon  any  con- 
tract between  the  city  and  the  sufferers.  Its  liability  for  the  damages  is  creat- 
ed by  a  law  of  the  legislature,  and  can  be  withdrawn  or  limited  at  its  pleasure, 
*  *  *  and  its  character  is  not  at  all  changed  by  the  fact  that  the  amount 
of  loss,  in  pecimiary  estimation,  has  been  a.scertained  and  established  by  the 
judgments  rendered.  The  obligation  to  make  indemnity  created  by  the  stat- 
ute has  no  more  element  of  contract  in  it  because  merged  in  the  judgments 
than  it  had  previously.  The  term  'contract'  is  used  in  the  Constitution  in  its 
ordinary  sense,  as  signifying  the  agreement  of  two  or  more  minds,  for  con- 
siderations proceeding  from  one  to  the  otlier,  to  do,  or  not  to  do,  ceitain  acts. 
Mutual  assent  to  its  terms  is  of  its  very  essence." 

A  judgment  based  on  a  true  contract  is,  however,  held  to  be  within  the 
constitutional  provision.     Nelson  v.  St.  Martin's  Parish  (1884)  111  U.  S.  716, 

4  Sup.  Ct.  648,  28  L.  Ed.  574. 

1  "An  error  of  fact  takes  place,  either  when  some  fact  which  really  exists 
is  unkno\^■n,  or  some  fac-t  is  supposed  to  exist  wliieb  reallv  does  not  exist." 
Per  Savage,  C.  J.,  in  Mowatt  v.  Wright  (1828)  1  Wend.  (N.  Y.)  355,  360,  19 
Am.  Dec.  508. 


52  BENEFITS   CONFERRED  BY  MISTAKE  (Ch.  2 

issue;  and  upon  the  trial  the  facts  appeared  to  be  as  follows:  The 
plaintiff  and  the  defendant  resided  in  Person  County  until  the  year 
1838,  when  the  plaintiff  removed  to  another  State.  At  the  time  of  his 
removal,  the  plaintiff  was  indebted  to  tlie  defendant  in  the  sum  of 
$23.85,  and  he  appointed  two  persons,  Stanford  Long  and  Wyatt  Pool, 
his  agents  in  this  State,  with  directions,  amongst  other  things,  to  pay 
the  debt  which  he  owed  to  the  defendant.  At  that  time,  the  defendant 
had  placed  his  claim  in  the  hands  of  H.  Bumpass,  a  constable,  to  col- 
lect; and  soon  afterwards,  Wyatt  Pool  saw  Bumpass  and  paid  him 
the  money  in  full.  About  a  month  afterwards.  Long  met  with  Allen, 
the  defendant,  and  informed  him  that  he  had  been  instructed  by  tlie 
plaintiff  to  discharge  the  debt,  and  that  he  was  ready  to  do  so  as  soon 
as  he  could  see  Bumpass,  who  held  the  claim  for  collection.  To  that 
the  defendant  replied,  that  the  debt  belonged  to  him,  and  that  he  was 
the  proper  person  to  receive  the  money;  and  he  said  that,  if  Long 
would  pay  it  to  him,  he  would  stand  between  him  and  danger.  Upon 
that  assurance,  Long  paid  the  debt,  $23.85,  to  Allen ;  and  upon  its  be- 
ing afterwards  discovered,  that  it  had  been  before  paid  by  Wyatt  Pool 
to  Bumpass,  the  money  paid  to  the  defendant,  Allen,  was  reclaimed 
from  him,  and  this  suit  brought  to  recover  it. 

Upon  these  facts,  the  counsel  for  the  defendant  moved  the  Court 
to  instruct  the  jury,  that  the  plaintiff  ought  not  to  recover,  because  it 
did  not  appear  that  Bumpass  had  paid  to  the  defendant  the  sum  which 
had  been  paid  to  Bumpass,  and  the  payment  by  Long  to  the  defendant 
himself  was  voluntary.  But  the  Court  refused  the  prayer,  and  directed 
the  jury,  that  if  they  believed  the  witnesses,  who  stated  the  facts,  the 
plaintiff  was  entitled  to  recover.  There  was  a  verdict  for  the  plaintiff, 
and  from  the  judgment,  the  defendant  appealed. 

RuFFiN,  C.  J.  The  payment  to  Bumpass  discharged  the  debt.  It 
made  no  difference,  that  he  did  not  pay  the  money  over.  That  was  be- 
tween him  and  his  principal,  Allen.  As  he  was  Allen's  agent,  with 
authority  to  receive  the  money,  tlie  payment  of  it  to  him  was  the  same 
as  payment  to  the  creditor  personally.  Then,  as  the  debt  was  dis- 
charged, the  second  payment,  to  Allen  himself,  was  without  considera- 
tion, and  made  by  mistake;  and  the  case  is,  therefore,  one  of  those 
common  ones,  stated  in  the  books,  in  which  the  action  for  money  had 
and  received  lies.  The  second  payment  was  not  voluntary,  in  any 
sense  that  can  affect  this  action.  It  is  true,  it  was  not  illegally  ex- 
acted by  process  or  by  duress.  But  that  is  not  the  criterion.  Money 
paid  as  a  debt,  under  a  mistake  and  where  no  debt  exists,  may  be  re- 
covered back,  althougVi  there  was  no  compulsion  on  the  person  to  make 
the  payment.  There  was  no  intention  here  to  make  a  gift  of  the  money, 
so  as  in  that  sense  to  constitute  it  a  case  of  a  voluntary  payment.  On 
the  contrary,  it  was  clear  that  the  money  was  paid  and  received  in  dis- 
charge of  a  debt  then  believed  to  subsist.  In  that  there  was  a  total 
mistake  on  the  part  of  the  person  making  the  payment,  and,  probably, 
on  that  of  the  receiver  also ;  and  it  is  plain  that  money,  thus  got  under 


Sec.  1)  THE   GENERAL  DOCTRINE  :    MISTAKE   OF   FACT  53 

a  mistake,  and  for  no  consideration,  cannot  be  kept  ex  equo  et  bono. 
On  that  ground,  then,  the  plaintiff  was  entitled  to  a  verdict.  But  here 
the  case  goes  further,  and  sets  out  in  substance  an  express  promise  to 
return  the  money,  if  it  were  not  then  properly  payable  to  the  defend- 
ant. It  was  said,  indeed,  that  the  defendant's  promise  was  to  indemni- 
fy Long  against  personal  loss,  and  did  not  extend  to  the  present  plain- 
tiff. But  clearly  the  promise  must  be  considered  as  made  to  Long  in 
the  character  in  which  he  was  tlien  acting,  namely,  as  the  plaintiff's 
agent.  The  case  is  one,  therefore,  in  which  there  can  be  no  hesitation 
in  affirming  the  judgment. 

Per  Curiam.    Judgment  affirmed." 


TINSLAR  V.  MAY. 
(Supreme  Court  of  Judicature  of  New  York,  1832.     8  Wend.  561.) 

This  was  an  action  of  assumpsit,  tried  at  the  Rensselaer  circuit  in 
June,  1830,  before  the  Hon.  James  Vanderpoel,  one  of  the  circuit 
judges. 

The  declaration  contained  the  common  money  counts.  The  plaintiff 
proved  that  in  the  settlement  of  a  bond  and  mortgage  which  he  held 
against  the  defendant,  the  defendant  was  credited  by  mistake  with 
$136.32,  the  interest  of  the  principal  sum  due  the  plaintiff  for  the  year 
ending  on  the  1st  April,  1825 ;  that  the  settlement  took  place  on  the  2d 

2  In  Millett  v.  Holt  (1872)  60  Me.  109,  the  parties  were  joint  owners  of  a 
parcel  of  real  estate,  and  agreed  to  cut  the  wood  and  timber  on  the  same,  paj- 
each  his  half  of  the  expense  of  the  operation,  and  divide  equally  the  proceeds 
of  the  sale  of  the  wood  and  timber  so  cut.  Holt  had  the  general  charge  of  the 
business,  employing  the  most  of  the  laborers,  and  paying  most  of  the  bills, 
amounting  to  $3,03.3.58.  IMillett  boarded  some  of  the  choppers,  and  hauled  some 
of  the  wood,  and  his  bill  amounted  to  $421.  Upon  settlement,  the  parties  add- 
ed all  the  expenses  together,  making  $3,454.58,  and  then  divided  the  sum  by 
two,  making  the  quotient  $1,727.29,  which  each  should  pay.  And  thereupon 
the  plaintiff  paid  the  defendant  the  sum  of  $1,727.29,  and  now  brings  this  suit 
to  recover  the  sum  of  $421  which  he  claims  was  paid  by  mistake.  Danforth. 
J.,  in  holding  for  the  plaintiff,  said :  "It  seems  that  the  parties  in  making 
their  settlement,  added  the  plaintiff's  bill  to  the  defendant's,  when  it  should 
have  been  deducted  from  it,  in  consequence  of  which  the  plaintiff  paid  four 
hundred  and  twenty-one  dollars  more  than  he  should  have  done.  This  was 
done  as  much  by  the  mistake  of  the  one  as  the  other,  and  now  he  asks  that 
it  may  be  paid  back  to  him.  And  why  should  it  not  be?  If  this  action  is 
sustained  under  the  statement  of  facts  presented,  it  will  only  be  invoking  one 
of  the  most  common  principles  of  law,  and  add  one  more  to  the  long  list  of 
cases  maintained  to  recover  back  money  paid  under  a  mutual  mistake  of 
fact." 

As  to  the  right  to  recover  at  law  an  overpayment  made  pursuant  to  a  deed 
which,  by  a  mutual  mistake,  does  not  express  the  true  intent  of  the  parties, 
the  authorities,  as  well  as  text-writers,  are  in  disagreement  See  Howes  v. 
Barker  (1808)  3  Johns.  (N.  Y.)  506,  3  Am.  Dec.  520.  (Plaintiff  must  resort  to 
a  court  of  equity  and  have  the  deed  reformed.)  Butt  v.  Smith  (1904)  121 
Wis.  566,  99  N.  W.  328,  105  Am.  St.  Rep.  1039.  (Allowing  action  at  law.  The 
contract  is  not  merged  in  the  deed.)  See,  also,  Ragsdale  v.  Turner  (1909)  141 
Iowa,  604,  120  N.  W.  109 ;  Woodward,  Quasi  Contracts,  §  180 ;  Keener,  Quasi 
Contracts,  123,  124. 


54  BENEFITS  CONFERRED  BY   MISTAKE  (Ch.  2 

April,  1830,  when  the  sum  of  $1448.61  was  paid  to  the  plaintiff,  and 
the  bond  and  mortgage  assigned  by  the  plaintiff  to  a  brother  of  the  de- 
fendant, at  the  request  of  the  defendant.  The  plaintiff  claimed  to 
recover  the  above  sum  credited  by  mistake.  The  defendant  objected 
that  tlie  plaintiff  could  not  recover  as  for  money  had  and  received ; 
that  he  should  have  declared  either  specially  or  upon  the  original  con- 
sideration, and  if  the  bond  and  mortgage  were  canceled,  he  should 
have  resorted  to  a  court  of  equity;  which  objection  was  overruled, 
and  the  plaintiff  had  a  verdict  for  the  amount  of  the  sum  credited  by 
mistake,  with  the  interest  thereof.  The  defendant  moved  for  a  new 
trial. 

Sutherland,  J.  I  think  the  motion  for  a  new  trial  should  be  de- 
nied. The  action  for  money  had  and  received  will  lie.  The  mistake 
was  equivalent  to  so  much  money  to  the  defendant;  he  had  a  credit 
to  that  amount,  to  which  he  was  not  entitled.  The  jury  have  found  the 
fact  of  mistake,  and  there  can  be  no  doubt  that  ex  aequo  et  bono  the 
defendant  ought  to  refund  to  the  plaintiff.     New  trial  denied. 


DEVINE  v.  EDWARDS. 
(Supreme  Court  of  Illinois,  1881.     101  111.  138.) 

Sheldon,  J.^  This  was  a  suit  to  recover  a  sum  claimed  to  be  due  to 
plaintiff  from  defendant,  for  a  quantity  of  milk  shipped  by  the  former 
to  the  latter  from  Dundee,  Illinois,  to  Chicago,  during  the  month  of 
March,  1S75.  Defendant  filed  a  plea  of  set-off,  alleging  that  for  five 
years  next  prior  to  the  commencement  of  the  suit  he  had  been  purchas- 
ing milk  of  plaintiff  by  the  gallon ;  that  it  was  shipped  in  cans  supposed 
by  both  parties  to  hold  eight  gallons  each ;  that  payments  for  the  milk, 
from  time  to  time,  were  made,  on  the  basis  of  a  capacity  of  eight  gal- 
lons to  a  can ;  that  in  fact  the  cans  held  a  less  quantity,  and  that  by 
the  error  defendant  had  overpaid  plaintiff  a  large  sum'  of  money, 
which  he  offered  to  set  off  in  this  case.  There  were  a  verdict  and 
judgment  in  favor  of  plaintiff  for  the  full  amount  of  his  claim,  in- 
cluding interest.  On  appeal  to  the  Appellate  Court  for  the  First  Dis- 
trict the  judgment  was  affirmed,  and  defendant  appealed  to  this  court 

At  the  trial  in  the  circuit  court  defendant  asked  the  following  in- 
struction, which  the  court  refused  to  give:  "The  jury  are  instructed, 
that  even  if  they  believe,  from  the  evidence,  that  at  some  time  in  De- 
cember, 1870,  at  Chicago,  it  was  agreed  between  the  plaintiff  and  de- 
fendant that  the  narrow  neck  cans  (so  called)  of  the  plaintiff  held  eight 
gallons  of  milk,  yet  if  the  jury  further  believe,  from  the  evidence, 
that  such  agreement  was  made  under  the  mistaken  belief  by  the  de- 
fendant that  such  cans  actually  held  eight  gallons,  then  the  defendant 
would  not  be  bound  by  such  agreement." 

3  A  portion  of  the  opinion  is  omitted. 


Sec.  1)  THE   GENERAL  DOCTRINE  :    MISTAKE  OF  FACT  55 

This  same  case  was  before  us  on  a  former  occasion,  (87  111.  177,) 
when  we  said  with  reference  to  the  subject  of  this  set-off:  "The  con- 
tract under  which  the  milk  was  sold  was  for  a  given  price  per  gallon. 
It  was  the  duty  of  appellee  to  see  to  it  that  his  cans  should  hold  the 
quantity  which  he  professed  they  held.  It  does  not  lie  in  his  mouth  to 
complain  that  appellant  did  not  watch  him  with  the  care  which  the 
circumstances  seemed  to  demand.  If,  in  truth  and  in  fact,  by  the 
mistake  of  appellant  and  that  of  appellee,  the  amount  of  the  milk  was 
short,  and  appellee  received  more  money  on  that  account  than  he  was 
entitled  to,  he  must  account  for  the  same,  even  though  the  mistake  re- 
sulted from  negligence  on  the  part  of  appellant  as  well  as  on  the  part 
of  appellee.  The  real  question  is  as  to  the  fact  of  the  alleged  shortage. 
If  that  existed,  the  appellant  is  entitled  to  have  the  wrong  corrected, 
by  way  of  set-off."  We  think  the  same  remarks  are  applicable,  al- 
though there  was  the  agreement  stated  in  the  instruction,  if  it  was 
made  under  the  mistaken  belief  as  therein  named,  and  that  the  in- 
struction should  have  been  given.     *     *     * 

Judgment  reversed. 


LOWE  V.  WELLS  FARGO  &  CO.  EXPRESS. 

(Supreme  Court  of  Kansas,  1908.     78  Kan.  105,  96  Pac.  74.) 

Error  from  District  Court,  Lyon  County ;  F.  A.  Meckel,  Judge. 

Assumpsit  to  recover  the  sum  of  $406.84,  The  case  was  tried  with- 
out a  jury  upon  an  agreed  statement  of  facts.  The  plaintiff's  son,  W. 
H.  Lowe,  was  in  the  employ  of  the  express  company  at  Emporia,  as 
express  messenger.  A  part  of  his  duty  as  such  was  to  receive  and 
receipt  for  packages  at  the  trains,  convey  them  to  the  express  office, 
and  take  a  receipt  therefor.  He  received  and  receipted  for  a  package 
containing  $406.84  at  a  train,  and  no  further  trace  of  it  could  be 
found.  The  company  demanded  payment  of  the  amount  of  money 
from  the  boy.  The  father  believing  his  son  had  dropped  the  package 
between  the  train  and  the  express  office,  and  it  had  thus  been  lost,  paid 
the  amount  to  the  company.  It  was  afterwards  learned  that  the  son 
safely  conveyed  the  package  to  the  company's  office  and  placed  it  with 
other  packages,  but  failed  to  take  a  receipt  therefor;  that  another 
employe  of  the  company,  Davis,  stole  the  package,  squandered  the 
money,  and  the  company  never  recovered  it.  The  company  was  pro- 
tected by  surety  bonds  as  to  both  employes.  After  the  facts  were 
discovered,  the  father  demanded  from  the  company  a  return  of  the 
money  paid,  which  being  refused,  he  brought  this  suit. 

Smith,  J.*  *  *  *  To  entitle  the  plaintiff  to  recover,  we  shall 
assume,    in   accordance   with   the   contention   of   the   defendant,    that 

*  The  statement  of  facts  is  taken  from  the  syllabus  by  the  court  and  portions 
of  the  opinion  are  omitted. 


56  BENEFITS  CONFERRED   BY   MISTAKE  (Ch.  2 

the  mistake  must  have  been  at  the  time  of  the  payment  mutual,  and 
the  alleged  mistaken  fact  material.  What,  then,  was  the  situation 
at  the  time  of  the  payment?  The  money  had  been  lost.  Diligent  ef- 
forts were  made  by  both  parties  to  discover  what  became  of  it,  and 
resulted  in  tracing  it  to  the  hands  of  the  plaintiff's  son.  He  could 
not  account  for  it,  and  no  further  trace  of  it  could  be  found.  Before 
reaching  Emporia,  where  the  investigation  was  made,  defendant's 
representative  and  another  man,  who  accompanied  him  to  make  the 
the  investigation,  informed  plaintiff  "that  it  was  evident  that  one  of, 
two  men  had  the  money."  After  making  the  investigation,  they  in- 
formed the  plaintiff  and  his  son  "that  they  were  unable  to  find  out 
anything  concerning  the  loss,"  and  demanded  payment  of  the  amount 
lost  from  the  plaintiff's  son.  "This  plaintiff,  believing  the  fact  to  be 
that  after  said  W.  H.  Lowe  had  received  the  package  at  Emporia, 
that  he  had  dropped  the  same  before  reaching  the  defendant's  office 
at  the  depot  in  Emporia,  and  further  believing  that  some  one  had 
picked  the  same  up  and  carried  it  away,  *  *  *  paid  the  amount 
of  the  loss  to  the  defendant." 

When  the  defendant's  agent,  under  these  circumstances,  demanded 
payment  of  the  loss  from  the  plaintiff's  son,  and  received  the  pay- 
ment, we  think  the  defendant  should  not  be  heard  to  say  that  it  did 
not  believe  that  the  plaintiff's  son  had  lost  or  appropriated  the  money. 
Both  parties,  then,  believed  a  material  fact  to  exist  which  did  not 
exist,  and  which  alone  led  to  the  payment  of  the  money.  That  an- 
other stole  the  money  after  the  plaintift''s  son  had  "safely  conveyed  it 
to  defendant's , office  at  the  depot  in  Emporia,  Kan.,  and  there  placed 
it  with  other  packages,"  is  not  material,  except  to  show  the  mistake 
by  reason  of  which  the  plaintiff  paid  the  money.  There  is  no  recital  in 
the  statement  of  facts  and  there  is  no  presumption  tliat  tlie  failure  of 
W.  H.  Lowe  to  take  receipt  for  the  package  induced  Davis  to  steal  the 
package.  It  is  true  the  rule  of  the  company  required  W.  H.  Lowe  to 
take  a  receipt  for  each  article  of  express  which  came  into  his  posses- 
sion as  agent  of  the  defendant  when  he  parted  with  such  possession. 
His  failure  to  do  so  was  negligence,  and  for  such  negligence  he  was 
responsible  to  the  company  for  such  damages  as  could  be  reasonably 
anticipated  to  flow  therefrom.  We  cannot  say,  however,  that  when 
he  safely  deposited  the  package  in  the  defendant's  office  with  other 
packages,  presumably  of  like  character,  that  it  was  reasonably  to  be 
anticipated  that  some  other  employe  of  the  company  would  steal  the 
package.  If  not,  there  was  no  consideration  for  the  payment.  The 
theft  was  the  proximate  and  independent  cause  of  the  loss ;  the  negli- 
gence was  not.  The  payment  was  made  and  received  on  the  belief  that 
W.  H.  Lowe  and  not  another  had  lost  or  appropriated  the  pack- 
age.    *     *     * 

It  is  contended  that  the  payment  in  question  was  a  voluntary  pay- 
ment, and  cannot  be  recovered  back,  and,  among  other  authorities 


Sec.  1)  THE   GENERAL   DOCTRINE  :    MISTAKE  OF  FACT  57 

cited  to  support  this  proposition,  the  following  are  cited :  Phillips  v. 
Board  County  Com'rs,  5  Kan.  412 ;  Commissioners  v.  Walker,  8  Kan. 
431 ;  Irwin  v.  Thomas,  12  Kan.  93;  K.  P.  Ry.  Co.  v.  Com'rs,  16  Kan. 
587 ;  Sapp  v.  Com'rs,  20  Kan.  245 ;  Thimes  v.  Stumpff,  33  Kan.  53, 
60,  5  Pac.  431.  We  have  examined  all  these  cases  and  find  that  they 
are  really  authorities  against  the  proposition  contended  for.  The  de- 
cisions, in  each  case,  are  based  upon  the  proposition  that  the  plain- 
tiff with  full  knowledge  of  the  facts  voluntarily  made  the  payment. 
In  the  case  at  bar,  the  plaintiff  made  every  reasonable  effort  to  ascer- 
tain what  became  of  the  lost  package  of  money  without  success. 
The  facts  which  came  to  his  knowledge  from  investigation  evidently 
led  him  to  believe,  and  he  paid  the  money  believing,  that  his  son  had 
lost  the  package  by  dropping  it.  This  was  not  true.  It  was  lost  by 
being  stolen  by  another  employe  from  a  place  in  the  defendant's  office, 
where  the  plaintiff's  son  had  safely  deposited  it.  This  we  think  is  a 
clear  mistake  of  fact.  A  fact  was  believed  to  exist  which  did  not 
exist,  and  a  fact  existed  which  was  not  known ;  otherwise  the  money 
would  not  have  been  paid,  it  is  safe  to  infer.  Under  the  real  facts, 
neither  the  plaintiff  nor  his  son  were  under  a  duty  to  pay  the  loss, 
nor  had  the  defendant  any  right  to  retain  it  after  it  was  paid.  The 
company  was  indemnified  against  loss  as  well  through  the  misfeasance 
of  Davis  as  of  young  Lowe.     *     *     * 

The  judgment  is  reversed,  and  the  case  is  remanded,  with  instruc- 
tions to  render  judgment  for  the  plaintiff. 


HENDRICKS  v.  GOODRICH.       . 
(Supreme  Court  of  Wisconsin,  1S62.     15  Wis.  679.) 

Appeal  from  the  Circuit  Court  for  Rock  County. 

Action  to  recover  $100  which  the  plaintiff  claimed  to  have  paid 
the  defendant  under  a  mistake  of  fact.  The  plaintiff  had  contracted 
with  the  defendant  for  a  tract  of  land,  and  had,  at  different  times  dur- 
ing four  years,  made  payments  thereon.  In  October,  1859,  it  was 
agreed  between  the  parties,  that  the  defendant  should  take,  in  full 
payment  of  the  balance  then  due,  a  horse,  harness  and  some  clevises, 
which  the  plaintiff  accordingly  delivered  to  him,  and  the  contract  was 
receipted  in  full  as  follows:  "Received  of  Jacob  Hendricks  one  bay, 
four  year  old  horse,  in  full  of  all  demands  on  the  within  contract,  be 
they  more  or  less."  The  balance  actually  due  at  that  time  was  $52.24 ; 
but  the -complaint  alleges  that  the  plaintiff  supposed  the  amount  to 
be  about  $150,  and  that  Goodrich,  "either  by  mistake  or  otherwise," 
left  him  so  to  suppose ;  and  that  "by  mistake  of  fact  he  paid  said 
Goodrich  $150,  by  the  delivery  to  him"  of  said  horse,  etc.,  "instead 
of  the  amount  actually  due." 

The  evidence  produced  at  the  trial  tended  to  show  that  the  value  of 
the  property  which  the  plaintiff  let  the  defendant  have,  was  from  $100 


58  BENEFITS  CONFERRED  BY   MISTAKE  (Ch.  2 

to  $135;  that  the  defendant  knew  at  the  time  of  the  settlement,  that 
there  was  not  more  than  $53.00  due  on  the  contract;  that  the  plaintiff, 
in  consequence  of  having  forgotten  one  payment,  of  $100,  supposed 
there  was  due  about  $150;  that  the  defendant  knew,  at  the  time,  of  the 
plaintiff's  mistake,  and  also  knew  that  he  valued  the  horse  at  $150. 
The  plaintiff,  on  discovering  his  mistake,  tendered  the  amount  due  on 
the  contract  in  money,  and  demanded  a  return  of  the  horse,  which  the 
defendant,  who  had  not  parted  with  the  horse,  refused.  Verdict  and 
judgment  for  the  plaintiff,  for  $79.00. 

Cole,  j.s  *  *  *  We  shall  not  attempt  to  notice  many  of  the 
questions  embraced  in  the  instructions,  and  which  were  discussed  on 
the  argument.  There  is,  however,  one  proposition  of  law  underlying 
the  case,  and  which  is  substantially  raised  by  several  of  the  instructions 
which  were  refused,  that  disposes  of  this  appeal.  It  is  this — to  state 
it  in  the  language  of  the  counsel  for  the  appellant,  as  used  in  his  brief : 
— the  respondent  cannot  have  the  privilege  of  affirming  the  contract  so 
far  as  to  make  the  appellant  keep  the  horse  in  satisfaction  of  the 
amount  due  on  the  contract,  and  of  disaffirming  so  as  to  recover  the 
difference  between  the  value  put  upon  the  horse  and  the  amount  due. 
A  glance  at  the  facts  shows  very  clearly  that  this  is  what  tlie  respondent 
is  seeking  to  do. 

The  action  was  brought  to  recover  part  of  the  value  of  a  horse  which 
the  respondent  had  sold  the  appellant,  in  full  payment  of  the  amount 
unpaid  on  a  land  contract  held  by  the  former  against  the  latter.  The 
respondent  bases  his  right  to  recover  on  the  ground  that  there  was  a 
hundred  dollars  less  due  on  the  contract  than  he  supposed  when  he 
sold  the  horse  in  satisfaction  of  it.  He  insists  that  the  appellant  was 
either  under  the  same  mistake  as  to  the  amount  due,  or  that  knowing 
the  amount  he  fraudulently  concealed  or  suppressed  the  real  truth, 
and  received  property  far  in  excess  in  value  of  the  sum  justly  due 
him.  In  either  case,  it  seems  to  us  quite  obvious  that  the  respondent 
cannot  treat  the  transaction  as  binding  so  far  as  the  discharge  of  the 
land  contract  was  concerned,  and  recover,  in  an  action  as  for  money 
had  and  received,  the  difference  between  the  value  put  upon  the  horse 
and  the  amount  due  upon  the  contract.  In  other  words,  he  is  not  at 
liberty  to  rescind  the  contract  of  exchange  and  sale  in  part,  and 
affirm  it  as  far  as  it  may  be  advantageous  or  beneficial  to  him.  If  he 
wishes  to  repudiate  the  contract,  he  must  do  so  as  to  the  entire  trans- 
action. The  rule  is  perfectly  well  settled,  that  when  a  party  seeks 
to  rescind  a  contract  on  the  ground  of  fraud,  he  must  do  so  in  toto, 
for  the  purpose  of  restoring  the  party  as  far  as  possible  to  the  con- 
dition in  which  he  stood  when  the  contract  was  made.  This  is  a  very 
familiar  principle,  and  is  perfectly  controlling  in  our  view  of  the  case. 
On  the  other  hand,  does  not  the  same  rule  apply,  if  the  respondent 
seeks  to  avoid  the  transaction  on  the  ground  that  it  was  entered  into 

6  The  statement  of  facts  is  abridged  and  a  portion  of  the  opinion  is  omitted. 


Sec.  1)  THE   GENERAL  DOCTRINE  :     MISTAKE   OF   FACT  59 

under  a  mistake  of  the  amount  due  on  the  contract?  Can  he  be  in  any- 
better  condition  to  affirm  the  contract  in  part,  and  disaffirm  in  part, 
than  he  would  be  were  he  proceeding  to  avoid  it  on  the  ground  of 
fraud?  We  cannot  see  that  he  is.  And  still  the  rule  would  not  be 
controverted,  that  where  the  right  to  rescind  springs  from  fraud,  the 
defrauded  party  must  rescind  the  entire  contract.  He  is  not  permitted 
to  enforce  it  so  far  as  it  is  advantageous  to  him,  and  repudiate  it  as  to 
the  residue.  For  the  same,  if  not  stronger  reasons,  the"  respondent, 
seeking  to  set  aside  the  transaction  because  it  was  entered  into  under 
a  mistake  as  to  the  amount  due  on  the  land  contract,  must  disaffirm 
it  entire.  We  assume  that  the  mistake  was  such  as  would  enable  him 
to  avoid  the  entire  transaction  if  he  should  seek  to  do  so. 

It  is  contended  that  in  any  event  he  would  not  have  this  right,  un- 
less the  mistake  as  to  the  amount  due  was  mutual.  But  upon  this 
point  we  express  no  opinion.  For,  assuming  that  the  law  is  other- 
wise, and  that  the  transaction  could  be  avoided  on  the  ground  that  the 
respondent  was  mistaken  as  to  the  amount  due  upon  the  land  con- 
tract, we  still  cannot  see  upon  what  principle  he  can  insist  that  the  ap- 
pellant shall  retain  the  property  and  pay  him  the  excess  in  money. 
We  certainly  have  no  right  to  say  that  the  appellant  would  not  be  in- 
jured by  keeping  the  horse  and  paying  the  excess.  He  might  not 
have  wanted  the  horse  nor  have  been  willing  to  take  it  except  under 
the  circumstances  he  did.  We  therefore  cannot  assume  that  he  would 
have  purchased  the  property  and  paid  in  money  the  excess  over  and 
above  the  sum  due  him  on  the  contract.  It  is  very  manifest  that  it 
cannot  be  either  safely  asserted  or  fairly  assumed  that  the  appellant 
would  have  done  anything  of  the  kind.  His  inducement  for  taking 
the  horse  at  all  might  have  been  the  precise  reason  that  he  had  no 
money  to  pay,  but  was  to  receive  it  in  satisfaction  of  the  contract. 
The  horse  is  claimed  to  be  worth  about  one  hundred  and  fifty  dollars, 
while  it  is  said  the  real  amount  due  on  the  land  contract  was  only 
about  fifty  dollars.  Under  such  circumstances,  can  it  be  fairly  assumed 
that  the  appellant  would  have  given  an  hundred  dollars  for  the  horse 
and  discharged  the  contract?  If  so,  upon  what  ground  can  such  an 
assumption  be  founded?  It  is  readily  seen  that  it  might  be  a  great 
hardship  to  compel  the  appellant  to  retain  the  horse  and  pay  the 
excess.  It  is  claimed  that  this  cannot  be  so,  because,  it  is  said,  the 
property  was  sold  and  delivered  in  payment  of  a  debt  due  in  money, 
and  though  the  appellant  may  still  have  the  horse,  yet  in  contemplation 
of  law  the  case  is  the  same  as  if  the  respondent  had  actually  paid  one 
hundred  and  fifty  dollars  under  a  mistake  that  this  sum  was  due. 

We  are  referred  to  some  authorities  in  support  of  this  position,  but 
an  examination  of  them  will  show  that  they  are  inapplicable,,  for  this 
reason:  we  are  unable  to  say  that  the  parties  treated  the  horse  as 
money,  or  that  the  appellant  would  have  purchased  it  and  paid  one 
hundred  and  fifty  dollars.     He  took  the  horse  in  satisfaction  of  the 


60  BENEFITS  CONFERRED   BY   MISTAKE}  (Ch,  2 

contract.  This  is  all  that  can  be  inferred  from  the  transaction.  It 
is  impossible  to  say  whether  he  would  have  paid  one  hundred  and  fifty 
or  even  one  hundred  dollars  for  the  horse.  For  this  reason  the  author- 
ities do  not  apply.  Now  while  the  respondent  is  compelled  to  admit 
that  the  horse  was  taken  in  satisfaction  of  the  amount  due  on  the  con- 
tract, he  is  still  endeavoring  to  avoid  the  contract  by  saying  that  he 
was  mistaken  as  to  the  amount  which  was  due.  In  other  words,  he 
is  attempting  to  avoid  the  contract  in  part  and  affirm  it  in  part.  This 
he  clearly  cannot  do. 

For  these  reasons  the  judgment  of  the  circuit  court  must  be  reversed, 
and  a  new  trial  ordered." 


NORTON  V.  BOHART. 
(Supreme  Court  of  Missouri,  Division  No.  2,  1891.     105  Mo.  615,  16  S.  W.  59S.) 

Appeal  from  Circuit  Court,  Caldwell  County;   J.  M.  Davis,  Judge. 

Action  of  money  had  and  received  to  recover  an  overpayment  of 
$2,000.00  alleged  to  have  been  made  by  mistake  of  fact. 

The  partnership  of  Guthrie  &  Norton,  of  which  the  plaintiff  is  the 
surviving  partner  and  the  administrator  of  the  partnership  estate, 
purchased  from  the  defendant  the  assets  and  business  of  a  bank,  pay- 
ing therefor  $10,250  for  the  capital  stock,  a  further  sum  of  $1,500 
for  the  furniture  and  fixtures,  which  had  been  paid  for  out  of  the 
profits,  and  the  additional  sum  of  $2,000  for  the  bank  building,  which 
had  been  paid  for  out  of  the  capital.  Guthrie  &  Norton,  as  plaintiff 
testified,  supposed  that  they  were  to  pay  only  the  amount  invested  in 
the  business,  and  tliey  paid  the  $2,000  for  the  building  through  inad- 
vertently overlooking  the  fact  that  tlie  building  had  been  paid  for 
out  of  the  capital  of  the  bank. 

The  defendant  testified  that  he  sold  the  bank  for  $10,250,  and  the 

8  Contra:  Jolinson  v.  Saum  (1904)  123  Iowa,  145,  98  N.  W.  599,  a  case  involv- 
ing almost  identical  facts,  where  the  court  said :  "May  a  creditor  swell  his 
claim  against  a  debtor  by  adding  to  the  account,  either  by  fraud  or  mistake, 
an  item  of  indebtedness  which  has  once  been  fully  paid,  and  insist  upon  keep- 
ing the  advantage  thus  obtained  over  the  debtor,  who  has,  by  oversight,  or 
even  by  carelessness,  paid  such  item  a  second  time?  The  statement  of  the 
question  is  its  own  answer.  Indeed,  counsel  do  not  deny  that  had  the  pay- 
ment been  made  in  money,  and  it  was  afterwards  discovered  that  defendant 
had,  by  mistake,  received  more  than  was  due  him,  an  action  would  lie  to  re- 
cover the  excess.  Does  the  fact  that  defendant  received  a  horse,  instead  of 
cash,  call  for  the  application  of  any  different  principle?  It  is,  of  course,  cor- 
rect that,  if  a  party  sees  fit  to  accept  a  horse  worth  $50  in  satisfaction  of  a 
debt  of  $500,  he  may  do  so,  and  both  parties  are  bound  by  the  transaction; 
and,  vice  versa,  if  a  man  with  a  horse  worth  $500  chooses  to  deliver  it  to  a 
creditor  in  payment  of  a  debt  of  $50,  neither  can  repudiate  such  settlement 
because  of  the  disparity  between  the  debt  paid  and  the  value  of  the  animal. 
But  if  A.,  having  a  just  demand  against  B.,  receives  full  payment,  and  there- 
after, through  mutual  mistake,  or  through  the  fraud  of  A.  and  the  mistake 
of  B.,  the  same  debt  is  paid  a  second  time,  in  money  or  property,  the  right  of 
B.  to  recover  the  money  or  value  of  the  property  would  seem  too  clear  for 
argument." 


Sec.  1)  THE   GENERAL  DOCTRINE  !    MISTAKE  OF  FACT  61 

building  for  $2,000  additional,  and  that  he  would  not  have  sold  the 
property  on  the  terms  plaintiff  insists  he  did. 

The  case  was  tried  by  the  court,  who  found  for  the  plaintiff,  and 
entered  judgment  accordingly.     The  defendant  alleged  exceptions. 

Thomas,  j  7  *  *  *  There  is  some  controversy  between  the 
parties  as  to  whether  this  is  a  suit  in  equity  or  an  action  at  law.  We 
think  it  clearly  an  action  at  law,  for  money  had  and  received.  2 
Chitty  Con.  (11th  Am.  Ed.)  pp.  903,  928-932.  The  trial  court  so 
treated  and  tried  it  and  in  this  no  error  was  committed.     *     *     * 

Defendant  asked  and  the  court  refused  to  declare  the  law  as  fol- 
lows :  "If  the  court  shall  believe,  from  all  the  testimony  in  the  case, 
that  the  plaintiff  agreed  to  pay  the  defendant  $10,250  on  account  of 
the  bank-stock,  and  $3,500  on  account  of  the  building,  furniture,  etc., 
and  that  plaintiff  paid  said  amount  in  accordance  with  the  terms  of 
the  agreement  between  the  parties,  then  the  finding  of  the  court  must 
be  for  the  defendant,  even  though  the  court  may  believe,  from  all 
the  evidence  in  the  case,  that  the  plaintiff  was  laboring  under  a  mis- 
take as  to  the  stock  of  the  bank  representing  its  building,  and  even 
though  the  court  may  believe  that  plaintiff  would  not  have  agreed 
to  pay  the  sums  above  specified  if  it  had  not  been  for  the  mistake 
he  was  laboring  under." 

If  the  court  had  given  this  instruction,  and  had  then  found  the  is- 
sues for  the  plaintiff",  we  would  be  able  approximately  to  determine 
what  facts  the  court  did  find ;  but  its  refusal  of  this  instruction  in- 
dicates, to  our  minds,  that  it  ignored  one  fact  essential  to  plaintiff's 
recovery.  The  issue  between  the  parties  was  what  the  contract  was, — 
not  what  form  it  took,  but  what  it  was  in  fact.  The  plaintiff  testified 
that  Guthrie  &  Norton  expected  to  get  the  assets  of  the  bank  by  the 
purchase  of  the  stock,  and  that  the  bank  building,  having  been  bought 
with  money  of  the  bank,  constituted  a  part  of  its  assets,  but  that  they 
paid  for  the  stock,  and  tlien  by  mistake  paid  a  further  and  additional 
sum  of  $2,000  for  the  bank  building.  The  defendant  testified  that 
he  sold  the  stock  for  $10,250,  and  the  bank  building  for  $2,000  addi- 
tional, and  he  would  not  have  sold  this  property  on  the  terms  the  other 
parties  to  the  transaction  afterwards  insisted  he  had  sold  it. 

Here  was  a  well-defined,  clean-cut  issue  of  fact,  made  not  only  by 
the  pleadings,  but  by  the  evidence ;  but  it  is  impossible  for  us  to  ascer- 
tain from  the  record  what  disposition  the  court  below  made  of  it.  If 
the  contract  was  as  plaintiff  claims  and  swears  it  was,  he  is  entitled  to 
recover;  but  if  the  contract,  on  the  other  hand,  was  what  defendant 
claims  and  swears  it  was,  or  if  he  alone  understood  it  that  way,  judg- 
ment ought  to  have  been  rendered  for  him  in  this  action,  even  though 
Guthrie  &  Norton  by  mistake  ignored  and  overlooked  the  fact  tliat  they 
paid  for  the  bank  building  twice.    If  there  was  a  mutual  mistake,  and 

7  The  statement  of  facts  is  based  on  the  syllabus  and  portions  of  the  opinion 
are  omitted. 


62  BENEFITS  CONFERRED  BY  MISTAKE  (Ch.  2 

plaintiff  paid,  by  virtue  thereof,  $2,000,  which  he  ought  not  to  have 
paid,  he  is  entitled  to  recover  it  in  this  form  of  action.  Chit.  Cont., 
supra;  Insurance  Co.  v.  Walsh,  18  Mo.  229;  Koontz  v.  Bank,  51  Mo. 
275 ;  Morrow  v.  Surber,  97  Mo.  155,  11  S.  W.  48;  Mowatt  v.  Wright, 
1  Wend.  (N.  Y.)  360,  19  Am.  Dec.  508;  Wheadon  v.  Olds,  20  Wend. 
(N.  Y.)  174;    Kelly  v.  Solari,  9  Mees.  &  W.  54. 

This  right  of  recovery,  however,  is  based  solely  on  the  contract  as 
it  was  entered  into,  in  fact.  The  recovery  of  this  sum,  in  case  it  was 
paid  by  mistake  of  both  parties,  puts  the  parties  precisely  where  they 
intended  to  put,  and  did  put,  themselves  by  the  contract  as  actually 
made.     This  works  no  wrong  upon  either  party. 

But  suppose  the  mistake  is  unilateral.  In  this  case,  suppose  plaintiff 
honestly  believed  he  was  to  get  the  bank  building  by  the  purchase  of 
the  stock  by  the  terms  of  the  contract,  and,  overlooking  this  fact, 
through  inadvertence  paid  an  additional  sum  of  $2,000  for  the  bank 
building,  but  that  defendant  honestly  believed  he  was  to  get  $10,250 
for  the  stock,  and,  in  addition  tliereto,  $2,000  for  the  bank  building. 
Could  plaintiff  recover  in  this  form  of  action,  under  the  facts  in  this 
case?  We  think  not.  There  are  cases  in  which  it  has  been  held,  and 
rightfully  held,  too,  that  money  paid  by  mistake  might  be  recovered 
in  an  action  at  law,  tliough  the  mistake  was  unilateral.  But  in  such 
cases  it  will  be  found  that  the  party  who  did  not  commit  the  mistake 
perpetrated  a  fraud  on  the  other  party  by  not  divulging  the  fact  as 
he  knew  it  to  exist,  and  the  recovery  of  the  money  placed  the  parties 
in  the  position  it  was  intended  by  both  of  them  they  should  be  placed, 
and  where  the  very  right  of  the  transactions  required  they  should  be 
placed.^  In  such  cases  the  court  does  not  undertake  to  make  a  new 
contract  for  either  party,  or  to  reform  the  contract  to  conform  to  the 
understanding  of  one  of  the  parties  alone,  but,  on  the  contrary,  simply 
puts  both  where  they  in  fact  agreed  they  would  stand. 

But  what  is  the  fact  here  ?  The  defendant  states  in  his  answer,  and 
swears  to  it  on  the  trial,  that  the  contract  between  him  and  Guthrie 
&  Norton  was  that  they  were  to  pay  him  $10,250  for  the  stock,  and 
$2,000  in  addition  thereto  for  the  bank  building,  and,  if  they  had  not 
agreed  to  do  this,  he  would  not  have  sold  tlie  bank  at  all.  The  court 
below,  by  refusing  defendant's  instruction,  evidently  did  not  regard 

8  In  Tucker  v.  Denton  (1907)  32  Ky.  Law  Rep.  521,  106  S.  W.  2S0,  15  L.  R. 
A.  (N.  S.)  2fc9,  the  plaintifl's  father  and  niotlier  coutracted  to  sell  the  I'aDn  on 
which  they  lived  to  the  defendants.  The  written  memorandum  of  the  contract 
of  sale  was  incomplete  and  not  binding  on  the  vendors.  The  plaintiff  not  hav- 
ing seen  the  contract,  and  in  the  mistaken  belief  that  the  contract  was  binding 
(which  the  court  held  to  be  a  mistake  of  fact)  paid  the  defendants  $800  to 
cancel  the  contract.  The  plaintiff  haviug  discovered  that  the  contract  was 
not  enforceable  against  her  parents,  brought  action  to  recover  the  money  paid. 
The  court  held  for  the  plaintiff,  saying  that,  if  the  defendant  believed  that 
Oie  contract  was  binding,  it  was  a  case  of  payment  of  money  under  a  mutual 
mistake  of  a  material  fact,  and  that  if  the  defendant  knew  that  the  contract 
was  not  binding,  and  concealed  such  fact  from  the  plaintifC,  then  It  was  a  case 
of  fraud  on  the  part  of  the  defendant. 


Sec.  1)  THE   GENERAL  DOCTRINE  :    MISTAKE   OF   FACT  63 

this  theory  of  importance  in  the  determination  of  the  issues,  provided 
the  other  contracting  parties  made  a  mistake,  and  paid  $2,000  more 
than  they  thought  they  ought  to  have  paid,  or  agreed  to  pay.  This 
was  error.  This  was  the  main  issue  in  the  case,  and  the  court  ought 
to  have  found  what  the  contract  was  in  fact,  as  understood  by  both  par- 
ties. The  plaintiff  holds  onto  the  property  transferred  to  Guthrie  & 
Norton  by  virtue  of  this  contract,  and,  if  the  defendant's  version  of 
it  be  correct,  then  the  court,  by  directing  him  to  pay  back  $2,000  which 
he  honestly  believed  he  was  getting  by  virtue  of  the  contract,  and 
without  the  reception  of  which  he  would  not  have  sold  the  property 
at  all,  would  be  substantially  making  a  contract  for  defendant,  without 
his  consent,  to  conform  to  what  the  plaintiff  understood  it  to  be.  It 
requires  no  argument  to  prove  that  the  court  has  no  such  power. 

If  Guthrie  &  Norton  honestly  believed  they  were,  by  the  terms  of 
the  contract,  to  get  the  bank  building  by  the  purchase  of  the  stock, 
and,  through  inadvertence,  overlooked  this  fact,  and  by  mistake  paid 
$2,000  for  the  bank  building  in  addition  to  what  was  paid  for  the  stock, 
and  the  defendant  honestly  believed  he  was  to  get  $10,250  for  the 
stock,  and  $2,000  in  addition  thereto  for  the  bank  building,  then  plain- 
tiff's only  remedy  was  to  rescind  the  contract,  put  the  parties  in  statu 
quo  by  returning  the  property,  and  asking  for  a  recovery  of  the  whole 
amount  paid.  In  such  case,  he  cannot  hold  onto  the  property,  and  at 
the  same  time  enforce  different  terms  against  the  other  party,  to  which 
that  party  never  assented.  This  would  be  making  defendant  sell  his 
property  to  plaintiff  for  $2,000  less  than  he  thought  he  was  to  get,  and 
$2,000  less  than  his  contract,  as  he  understood  it,  entitled  him  to. 

The  instruction  above  quoted,  asked  by  defendant,  and  refused  by 
the  court,  declared  the  law  properly  as  far  as  it  went.  The  instructions, 
to  fully  cover  the  issue  made,  ought  to  be  framed  in  the  hypothetical 
form,  so  as  to  have  the  jury  find  the  following  facts :  (1)  What  the 
contract  was,  in  fact.  (2)  If  the  parties  did  not  understand  it  alike, 
what  its  terms  were,  as  understood  by  them,  respectively. 

If  the  contract  was  in  fact  what  Guthrie  &  Norton  claimed  it  was, 
then  the  defendant  ought  to  refund  the  sum  of  money  in  dispute.  In 
that  case  Guthrie  &  Norton  paid  the  $2,000  by  mistake,  and  defendant 
knew  at  the  time  that  he  was  getting  that  sum  wrongfully.  In  other 
words,  Guthrie  &  Norton  made  a  mistake,  and  defendant  perpetrated 
a  fraud  by  receiving  money  to  which  he  knew  he  was  not  entitled,  and 
which  he  knew  the  other  parties  were  paying  through  mistake. 

If  the  contract  was  in  fact  what  defendant  claimed  it  was,  of  course 
plaintiff  has  no  cause  of  action.  Guthrie  &  Norton  had  a  perfect  right 
to  buy  the  bank  on  such  terms  as  they  could  get  it.  And,  again,  if 
the  defendant  honestly  and  in  good  faith  believed  that  the  contract 
was  what  he  claimed  it  was,  and  Guthrie  &  Norton  honestly  and  in 
good  faith  believed  it  was  what  they  claimed  it  was,  then  they,  if  they 
were  right,  had  a  remedy,  but  it  was  not  the  remedy  here  pursued.    Be- 


64  BENEFITS   CONFERRED   BY   MISTAKE  (Ch.  2 

fore  the  court  would  hear  them  in  that  case,  they  would  have  to 
put,  or  offer  to  put,  the  defendant  in  statu  quo,  i.  e.,  return,  or  offer 
to  return,  to  him  the  property,  and  ask  for  the  repayment  of  the  $13,- 
750  paid  for  it.  The  court,  if  it  found  one  party  understood  the 
contract  one  way,  and  tlie  other  party  understood  it  a  different  way, 
could  restore  the  property  to  the  one,  and  the  money  paid  to  the  other, 
and  put  both  parties  in  statu  quo.  This. is  equity,  and  common  sense 
as  well.  The  conclusion  we  have  reached  is  supported  by  the  follow- 
ing authorities:  Kerr,  Fraud  &  M.  409;  Bellows  v.  Stone,  14  N.  H. 
175 ;   Mathews  v.  Kansas  City,  80  Mo.  231 ;   Irwin  v.  Wilson,  45  Ohio 

St.  426,  15  N.  E.  209,  12  West.  Rep.  873,  and  cases  cited  in  note. 
*     *     * 

For  the  error  committed  by  the  court  below  in  not  properly  de- 
claring the  law,  the  judgment  is  reversed,  and  the  cause  remanded  for 
new  trial,  in  conformity  to  the  views  expressed  herein.   All  concur.* 


(B)  Voluntary  Payment  and  Compromise 

BROWN  V.  McKINALLY. 
(Nisi  Prius,  before  Lord  Kenyon,  C.  J.,  1795.    1  Esp.  279.) 

Assumpsit  for  money  had  and  received.     Plea  of  the  general  issue. 

The  plaintiff  and  defendant  being  in  the  same  line  of  business,  en- 
tered into  an  agreement,  by  which  the  defendant  agreed  to  sell  the 
plaintiff  all  his  old  iron,  except  bushel-iron,  which  was  of  an  inferior 
quality,  at  £9.  per  ton. 

The  iron  he  delivered  was  mixed  iron,  of  an  inferior  value,  being 
part  bushel-iron,  and  charged  the  full  value  of  the  best  sort;  the 
plaintiff  objecting  to  the  charge,  the  now  defendant  brought  an  action 
for  it.  The  plaintiff  paid  the  full  demand  so  made  on  him,  at  the 
same  time  telling  the  defendant,  that  he  did  it  without  prejudice;  and 
meant  to  bring  an  action  to  recover  back  tlie  overplus  so  paid.  This 
action  was  brought  for  that  purpose. 

When  the  case  was  opened  by  the  plaintiff's  counsel,  Lord  Kenyon 
said,  that  such  an  action  could  not  be  maintained.  That  to  allow  it, 
would  be  to  try  every  such  question  twice;  for  that  the  same  legal 
ground  that  would  intitle  the  plaintiff  to  recover  in  the  present  action, 
would  have  been  a  good  defence  to  the  action  brought  against  him  by 
the  present  defendant;  at  which  time  and  in  which  manner  he  should 
have  proceeded :  that  money  paid  by  mistake  was  recoverable  in  as- 
sumpsit ;  but  here  it  was  paid  voluntarily,  and  so  could  not  be  recovered 
under  the  circumstances  of  this  case. 

•Compare  Pickslay  v.  Starr  (1S96)  149  N.  Y.  432,  4.4  N.  E.  163,  32  L.  R.  A. 
703,  52  Am.  tit.  Kei).  740,  briefly  stated  in  note,  page  432,  infra. 


Sec.  1)  THE   GENERAL   DOCTRINE  :    MISTAKE   OF  FACT  C5 

WINDBIEL  V.  CARROLL. 

(Supreme  Court  of  New  York,  General  Term,  1878.     16  Hun,  101.) 

Appeal  from  a  judgment  in  favor  of  the  defendant,  entered  upon  a 
nonsuit  directed  at  the  Circuit. 

Xavier  Misselbeck  and  Mary,  his  wife,  executed  and  deHvered  to 
Davis  L.  Carroll,  defendants'  testator,  their  bond  conditioned  to  pay 
the  sum  of  $1,200,  with  their  mortgage  accompanying  the  same. 
Thereafter  Xavier  and  Mary  conveyed  said  real  estate  to  Charles 
Windbiel,  this  plaintiff,  subject  to  the  lien  of  this  mortgage,  he  assum- 
ing the  payment  of  the  same.  Both  Misselbeck  and  the  plaintiff  had 
made  payments  on  said  bond  before  such  conveyance  to  Windbiel. 
On  June  10,  1876,  the  plaintiff  paid  the  balance  claimed  by  the  testator. 
Dr.  Carroll,  seven  hundred  and  ten  dollars  and  some  cents.  At  that 
time  plaintiff  claimed  there  had  been  paid  upon  such  bond  and  mort- 
gage two  sums  which  had  not  been  credited  thereon,  one  of  $90.30  and 
the  other  of  $164.66,  together  $254.96.  And  to  recover  said  two  sums 
so  alleged  to  have  been  over-paid,  this  action  was  brought.  On  the 
trial,  plaintiff  produced  a  receipt  for  $164.66,  given  by  Davis  L.  Carroll 
to  Xavier  Misselbeck,  which  amount  was  not  allowed  to  the  plaintiff 
when  he  made  the  above-mentioned  payment  on  the  bond  and  mort- 
gage. 

Learned,  P.  J.  When  the  plaintiff  paid  up  the  mortgage  to  Dr. 
Carroll,  he  "claimed  it  was  not  right  and  that  there  was  not  so  much 
due."  He  claimed  that  there  had  been  an  over-payment  of  $200  more 
than  the  doctor  had  credited  him  on  the  bond  and  mortgage.  He  said 
that  he  would  pay  the  mortgage  and  would  commence  an  action  against 
the  doctor  to  recover  it  back.  There  was  a  dispute  between  the  plain- 
tiff and  the  doctor  about  the  amount  due.  And  the  plaintiff,  when  he 
paid  the  bond  and  mortgage,  told  the  doctor  that  he  would  ascertain 
whether  he  had  overpaid  him,  and  if  he  had  taken  out  of  him  more 
than  was  due,  he  would  sue  him. 

This  is  the  testimony  of  the  plaintiff's  own  witness,  and  it  is  not 
contradicted.  Two  or  three  days  afterwards  the  plaintiff  commenced 
this  action.  The  plaintiff,  therefore,  when  he  paid  the  bond  and  mort- 
gage, knew  (or  believed)  that  he  was  paying  more  than  was  owing.  The 
very  fact  on  which  he  now  seeks  to  recover  was  known  to  him  and  in- 
sisted upon  by  him  at  that  time,  and  he  made  the  payment  with  the 
intention  of  suing  to  recover  part  of  it  back  again.  What  he  has  since 
discovered  (as  he  claims)  is  not  the  fact  that  $200  more  than  was  cred- 
ited had  been  paid,  but  only  the>means  of  proving  that  fact. 

Ignorance  of  a  fact  is  one  thing;  ignorance  of  the  means  of  proving 

a  fact  is  another.     When  money  voluntarily  paid  is  recovered  back,  it 

is  because  tliere  was  a  mistake  as  to  some  fact.    But  here  the  plaintiff 

was  not  mistaken  as  to  the  fact.    Only  at  the  time  he  did  not  know  how 

Thues.Quasi  Cont. — 5 


66  BENEFITS   CONFERRED   BY   MISTAKE  (Ch.  2 

to  prove  it.  The  subsequent  discovery  of  evidence  to  prove  a  fact, 
known  to  the  'party  when  he  makes  the  payment,  cannot  authorize  a 
recovery  back  of  the  money.  Such  a  principle  would  be  most  dan- 
gerous. 

I  think  the  judgment  should  be  affirmed,  with  costs. 

BocKKS,  J.,  concurred.     Boardman,  J.,  dissented. 

Judgment  affirmed,  with  costs. ^ 


NEW  YORK  LIFE  INS.  CO.  v.  CHITTENDEN  &  EASTMAN. 

(Supreme  Court  of  Iowa,  1907.     134  Iowa,  613,  112  N.  W.  96,  11  L.  R.  A.  [N. 
S.]  233,  120  Am.  St.  Rep.  444,  13  Ann.  Cas.  40S.) 

Appeal  from  District  Court,  Des  Moines  County;  W.  S.  Withrow, 
Judge. 

Action  to  recover  back  the  money  paid  on  a  life  insurance  policy 
under  mistake  as  to  the  death  of  the  insured.  On  trial  without  a  jury 
the  court  rendered  a  judgment  for  defendants,  from  which  plaintiffs 
appeal. 

McClain,  J.^**  Two  policies  were  issued  by  plaintiff  to  one  Jarvis 
on  the  9tli  day  of  September,  1889,  each  for  $1,350,  payable  on  his 

9  In  National  Life  Insurance  Co.  v.  Jones  (1S73)  1  Thomp.  &  C.  466  (affirmed 
on  opinion  below,  59  N.  Y.  649  11S74]),  the  plaintiff  company  had  issued  a 
policy  of  insurance  upon  the  life  of  one  Hiram  J.  Mumford,  payable  to  his 
wife.  Upon  the  death  of  the  insured  the  officers  of  the  plaintiff  suspected  that 
the  policy  had  been  obtained  through  false  and  fraudulent  representations  as 
to  the  health  of  the  insured  contained  in  his  application  for  the  policy,  and 
as  a  result  of  an  investigation  such  officers  came  to  the  conclusion  that  a  de- 
fense existed  to  the  claim  upon  said  policy.  Nevertheless  the  company  paid 
the  claim  in  full,  partly  because  of  the  evil  effect  which  a  resistance  of  the 
claim  would  have  upon  the  reputation  of  the  company  in  the  event  of  an  un- 
successful resistance,  and  partly  from  some  expected  benefit  which  in  some 
general  way  might  result  to  the  company  from  prompt  payment.  The  present 
action  was  brought  to  recover  the  sum  so  paid  upon  the  ground  that  the 
policy  was  obtained  through  fraud  as  above  stated.  The  court  held  for  de- 
fendant, saying:  "The  rule  by  which  a  party  is  enabled  to  recover  back 
money  paid  under  a  mistake  of  fact  does  not  authorize  him  to  rescind  a 
payment  merely  because  he  has  changed  his  mind  in  regard  to  a  matter  of 
policy,  or  because  he  has  come  to  a  better  position,  so  far  as  the  facilities 
and  probable  result  of  a  defense  are  concerned,  but  is  based  upon  the  idea 
of  a  bona  fide  and  controlling  belief  in  the  existence  of  given  facts,  under 
the  influence  of  which  he  has  been  induced  to  make  payment.  Such,  accord- 
ing to  the  findings  and  the  evidence,  is  not  this  case." 

In  Guild  v.  Baldridge  (1S52)  32  Teun.  (2  Swan)  29.5,  it  was  held  that  a  re- 
covery of  money  paid  under  mutual  mistake  of  fact  cannot  be  resisted  "on 
the  ground  that  the  plaintiff,  at  the  time  of  payment,  may  have  entertained 
and  expressed  a  vague  belief,  resting  on  no  evidence  and  amounting  to  noth- 
ing like  conviction  or  moral  certainty,  that  he  had  previously  paid  the  debt. 
The  authorities  cited  require  that  he  shall  have  had  knowledge  of  the  facts, 
and  that  term  must  be  understood  in  its  ordinary  sense." 

If  at  the  time  of  payment  defendant  agreed  to  refund  any  sum  paid  in  ex- 
cess of  what  was  actually  due,  plaintiff  may  recover  such  excess,  even  though 
it  was  voluntarily  paid  by  him.  Steere  v.  Oakley  (1S9S)  186  Pa.  582,  40  Atl. 
815 ;   Juneau  v.  Stunkle  (1889)  40  Kan.  756,  20  Pae.  473,. 

10  A  portion  of  the  opinion,  discussing  another  point,  is  omitted. 


Sec.  1)  THE    GENERAL   DOCTRINE:    MISTAKE    OF    FACT  67 

death  to  his  wife,  or,  if  not  Hving,  to  his  children,  or,  if  no  children 
should  survive,  then  to  the  executors,  administrators,  or  assigns  of  the 
insured.  Prior  to  the  25th  day  of  December,  1894,  the  wife  of  the  in- 
sured had  died,  and  he  was  without  children,  and  he  had  assigned  the 
policy  of  the  defendants  Chittenden  &  Eastman,  a  partnership  to 
whom  he  was  indebted,  and  forwarded  a  copy  of  this  assignment  to 
the  plaintiff.  It  appears,  also,  that  prior  to  the  assignment  to  Chitten- 
den &  Eastman  there  had  been  another  assignment  by  way  of  security 
to  the  Iowa  State  Savings  Bank  which  had  not  been  forwarded  to  the 
plaintiff,  and  was  not  known  to  it  when  the  assignment  to  Chittenden 
&  Eastman  was  received  and  recognized.  On  the  last  above  date 
Jarvis,  the  insured,  disappeared  from  his  home  in  Burlington,  and 
was  not  heard  of  for  more  than  seven  years. 

At  the  April  term,  1902,  of  the  district  court  of  Des  Moines  county, 
the  Iowa  State  Savings  Bank  applied  as  creditors  for  the  appointment 
of  an  administrator  for  the  estate  of  Jarvis,  alleging  his  disappear- 
ance, and  that  his  whereabouts  had  continued  unknown  to  his  friends 
and  the  members  of  his  family,  and  that  he  had  not  been  heard  from. 
Proper  proceedings  were  had,  under  which  defendant  Waldeck  was  ap- 
pointed administrator  of  the  estate  of  Jarvis,  and  a  claim  was  then  made 
jointly  by  Waldeck  as  administrator  and  Chittenden  &  Eastman  as 
assignees  for  payment  of  the  policies  held  by  Jarvis  in  the  plaintiff 
company;  and  proofs  of  death  were  furnished  by  Waldeck,  in  which 
were  the  following  statements :  "(7)  Date  of  death :  During  Christ- 
mas week,  1894.  (8)  Place  of  death:  The  assured  disappeared,  and 
since  that  date  he  has  not  been  heard  from.  There  was  nothing  in 
his  family  or  business  relations  to  explain  his  absence.  His  brother 
at  the  time  of  his  disappearance  was  a  resident  of  Burlington,  Iowa, 
and  has  ever  since  continued  to  reside  there  and  the  most  pleasant 
relations  existed  between  them.  *  *  *  (10)  In  what  capacity,  or 
by  what  title,  to  you  claim  this  insurance?  As  administrator  of  the 
estate  of  the  assured." 

Negotiations  were  had  between  attorneys  representing  tlie  admin- 
istrator and  an  agent  of  the  insurance  company  in  which  it  was  in- 
sisted for  the  administrator  that  the  insurance  money  was  due  and 
payable,  and  that,  unless  it  was  paid,  suit  would  be  instituted  on  the 
policies.  Subsequently  two  drafts  for  the  amount  specified  in  the 
policies,  payable  jointly  to  Chittenden  &  Eastman,  assignees,  and  C. 
W.  Waldeck,  administrator,  were  tendered  to  the  attorneys  for  the 
administrator  by  the  agent  of  the  plaintiff,  with  the  condition  that 
the  administrator  and  assignees  should  give  a  bond  of  indemnity  to 
the  company  for  the  return  of  the  money  in  case  it  should  be  subse- 
quently discovered  that  Jarvis  was  not  dead  at  the  time  of  this  settle- 
ment. The  attorneys  for  the  administrator  refused  in  behalf  of  their 
client  to  furnish  such  bond,  and  thereupon  the  drafts  were  delivered 
without  further  insistence  upon  this  condition.     The  proceeds  of  the 


68  BENEFITS   CONFERRED   BY    MISTAKE  (Ch.  2 

drafts  were  paid  in  part  to  the  Iowa  State  Savings  Bank,  and  in  part 
to  Chittenden  &  Eastman. 

It  is  conceded  that  after  this  payment  and  the  distribution  of  the 
proceeds  thereof  by  the  administrator  Jarvis  was  ahve,  and,  on  the  dis- 
covery of  the  fact  in  April,  1905,  the  company  tendered  back  the  pol- 
icies of  insurance  and  demanded  the  return  of  the  money  paid,  and  on 
refusal  this  suit  was  instituted.  As  the  payment  of  the  insurance  was 
by  tlie  drafts  made  jointly  to  Chittenden  &  Eastman  and  Waldeck, 
this  suit  is  no  doubt  properly  instituted  against  them  jointly,  although 
the  money  has  been  in  part  distributed  to  the  Iowa  State  Savings  Bank, 
which  is  not  a  party  to  this  action ;  but,  as  our  conclusions  in  the  case 
are  not  dependent  on  the  extent  of  the  liability,  respectively,  of  Wal- 
deck and  Chittenden  &  Eastman,  we  shall  give  that  subject  no  further 
consideration. 

1.  If  Waldeck  as  administrator  was  entitled  to  maintain  a  suit 
against  plaintiff  under  the  authority  given  him  in  the  administration 
proceeding  and  to  recover  the  insurance  money  which  was  in  fact  paid, 
plaintiff  had  no  right  to  recovery  as  against  him  individually,  for  he 
had  done  what  by  law  he  was  authorized  to  do,  and  could  not  be  held 
individually  liable.  The  first  question,  then,  as  we  think,  is  whether  the 
proceedings  for  administration  on  the  estate  of  Jarvis  were  valid.  It 
seems  to  be  conclusively  settled  by  adjudications  that  a  probate  court 
acquires  no  jurisdiction  by  proceeding  to  administer  on  the  estate 
of  a  person  on  the  ground  that  he  is  dead  if  in  fact  he  is  alive, 
and  such  proceedings  are  entirely  invalid,  and  any  judgments  or  or- 
ders made  in  pursuance  thereof,  and  any  action  taken  thereunder, 
are  absolutely  void  as  against  the  person  who  is  erroneously  adjudged 
to  be  dead.  Without  citing  the  many  authorities  supporting  this  prop- 
osition, it  is  sufficient  to  say  that  any  such  proceeding,  if  sustained, 
would  result  in  depriving  the  person  erroneously  adjudged  to  be  dead 
of  his  property  without  due  process  of  law.  Scott  v.  McNeal,  154  U. 
S.  34,  14  Sup.  Ct.  1108,  38  L.  Ed.  896. 

But,  in  the  exercise  of  its  jurisdiction  over  property  within  the  state, 
it  may  be  provided  by  the  legislature  that  after  the  absence  of  the 
owner  unheard  of  for  a  specified  period  such  property  may  be  admin- 
istered upon  in  the  same  form  of  proceeding  as  is  provided  for  ad- 
ministration upon  the  property  of  a  person  deceased,  and  such  ad- 
ministration will  be  valid  as  against  the  absentee  and  all  persons  in- 
terested, although  he  is  in  fact  not  dead.  Cunnius  v.  Reading  School 
District,  198  U.  S.  458,  25  Sup.  Ct.  721,  49  L.  Ed.  1125,  3  Ann.  Cas. 
1121.  Section  3307  of  our  Code  provides  for  such  an  administration 
on  the  estate  of  one  who  has  absented  himself  from  the  state  and  con- 
cealed his  whereabouts  from  his  family  for  a  period  of  seven  years, 
and  under  the  decision  last  above  cited  we  have  no  doubt  that  this  sec- 
tion is  constitutional  and  provides  for  a  proceeding  which  may  prop- 
erly be  resorted  to  in  such  cases,  and  which  is  conclusive  on  the  ab- 
sentee and  those  claiming  under  him.    The  administration  granted  as 


Sec.  1)  THE    GENERAL   DOCTRINE:    MISTAKE    OF   FACT  69 

to  the  property  of  Jarvis  was  in  accordance  with  the  provisions  of  this 
section,  and  we  think  it  was  vaHd. 

Waldeck  as  administrator  had  the  right,  therefore,  to  receive  from 
the  plaintiff  the  proceeds  of  the  poHcies  on  Jarvis'  life  so  far  as  such 
proceeds  were  payable  to  his  administrator,  and,  as  Chittenden  &  East- 
man assented  to  such  payment  and  to  the  distribution  of  the  pro- 
ceeds by  Waldeck  as  administrator,  there  was  a  final  settlement  un- 
der the  policies,  which,  if  Jarvis  had  been  in  fact  dead,  would  have 
been  binding  on  all  parties.  It  m.ay  be  conceded  that  the  policies  did 
not  mature  simply  on  the  granting  of  administration  on  the  estate  of 
Jarvis  as  an  absentee.  The  conditions  of  the  policies  were  that  the 
sums  named  therein  should  be  paid  on  Jarvis'  death,  and,  as  already 
indicated,  the  administration  was  not  conclusive  as  to  the  fact  of  his 
death,  but  only  as  to  the  fact  of  his  absence,  and  the  concealment  of  his 
whereabouts  from  his  family  for  seven  years.  But  the  facts  which 
justified  the  administration  would  also  as  evidence  have  established 
a  right  of  action  on  the  policies  by  the  administrator  and  the  assignees 
to  recover  the  insurance  money,  for  those  facts  would  have  been  suffi- 
cient evidence  of  death  to  sustain  a  judgment  based  on  that  fact.  The 
plaintiff  company  was  thereupon  brought  face  to  face  with  the  ques- 
tion whether  it  would  pay  the  amounts  of  the  policies  or  stand  suit 
thereon,  and  question  the  fact  of  the  death  of  Jarvis. 

It  may  further  be  suggested  that  the  obligation  of  the  plaintiff  under 
its  policies  was  to  pay  the  amount  named  therein  to  the  proper  bene- 
ficiary within  60  days  after  due  notice  and  satisfactory  proof  of  death, 
and  that  proof  of  death  stating  the  facts  which,  if  established,  would 
show  the  liability  of  the  company  was  furnished,  and  no  objection 
thereto  on  the  part  of  the  company  was  made.  Under  these  condi- 
tions, and  for  the  purpose  of  avoiding  an  action  on  the  policies,  the 
plaintiff  company  elected  to  pay  over  the  amount  thereof  to  the  per- 
sons entitled  to  receive  the  insurance  money  if  Jarvis  were  in  fact 
dead,  and  this  compromise  and  settlement  of  a  claim  based  on  the 
assertion  of  his  death  was,  we  think,  binding  and  conclusive  on  the 
company.  Had  a  judgment  been  secured  in  an  action  by  the  adminis- 
trator with  authority  to  represent  the  rights  of  all  persons  mterested 
in  the  proceeds  of  the  policies,  such  judgment  would  have  been  conclu- 
sive as  to  the  death  of  Jarvis,  and  the  company  could  not,  after  pay- 
ing the  amount  of  such  judgment,  have  recovered  back  the  money 
paid  on  discovering  that  the  essential  fact  in  issue  in  the  case,  to  wit, 
the  death  of  Jarvis,  had  been  erroneously  adjudicated.  The  judgment 
would  have  been  conclusive  as  to  that  fact.  Therefore  we  think  that 
a  settlement  by  which  the  money  was  paid  for  the  purpose  of  avoiding 
a  suit  in  which  such  a  judgment  might  have  been  rendered  is  also  con- 
clusive, and  that  plaintiff  cannot  now  recover  back  the  money  thus 
paid. 

In  a  case  quite  similar  in  its  essential  facts  to  the  one  now  before 
us  the  Court  of  Appeals  of  New  York  held  that  the  arrangement  for 


70  BENEFITS    CONFERRED    BY    MISTAKE  (Cll.  2 

die  payment  of  the  amount  of  the  poHcies  entered  into  in  view  of  the 
assumed  death  of  the  assured  as  indicated  by  his  absence  unheard  of 
for  more  than  seven  years  -was  binding  after  it  had  been  ascertained 
that  he  was  still  living;  such  arrangement  having  been  made  with  re- 
gard to  the  chances  of  success  of  the  claimant  under  the  policy  at  the 
time  when  the  insured  was  thought  to  be  dead.  In  that  case,  as  in  this, 
"clearly  but  one  thing  was  dealt  with  or  could  be  in  the  agreement  of 
settlement,  to  wit,  the  possibility  that  the  insured  should  prove  to  be 
alive."  Sears  v.  Grand  Lodge,  163  N.  Y.  374,  57  N.  E.  618,  50  L.  R. 
A.  204.  In  the  case  before  us  there  was  no  compromise,  it  is  true, 
as  to  the  amount  to  be  paid ;  but  there  was  a  compromise  on  the  ques- 
tion whether  anything  was  payable,  and  for  the  purpose  of  avoiding  lit- 
igation the  plaintiff  elected  to  make  payment.  A  voluntary  payment 
is  usually  conclusive,  and  cannot  be  recovered  back.  Manning  v.  Pol- 
ing, 114  Iowa,  20,  83  N.  W.  895,  86  N.  W.  30;  James  v.  Dalbey,  107 
Iowa,  463,  78  N.  W.  51;  Davenport  &  St.  P.  R.  Co.  v.  Rogers,  39 
Iowa,  298;  Bailey  v.  Paullina,  69  Iowa,  463,  29  N.  W.  418;  Baldwin 
V.  Foss,  71  Iowa,  389,  32  N.  W.  389;  Lyman  v.  Lauderbaugh,  75  Iowa, 
481,  39  N.  W.  812;  Weaver  v.  Stacey,  93  Iowa,  683,  62  N.  W.  22; 
Windbiel  v.  Carroll,  16  Hun  (N.  Y.)  101 ;  National  Life  Ins.  Co.  v. 
Jones,  1  Thomp.  &  C.  (N.  Y.)  466. 

2.  Counsel  for  appellant  insist  that  this  payment  was  one  made  un- 
der a  mutual  mistake  of  fact,  and  that  in  accordance  with  the  well-rec- 
ognized equitable  principle  money  thus  paid  may  be  recovered  back. 
The  rule  thus  invoked  is  not  applicable,  however,  where  under  an  as- 
sumption of  fact  known  to  both  parties  to  be  doubtful  there  has  been 
a  voluntary  payment  in  extinguishment  of  a  claim. 

The  principle  is  thus  stated  in  1  Pomeroy,  Equity  Jurisprudence  (2d 
Ed.)  §  855 :  "Where  parties  have  entered  into  a  contract  or  arrange- 
ment based  upon  uncertain  or  contingent  events  purposely  as  a  com- 
promise of  a  doubtful  claim  arising  from  them,  *  *  *  ^^^  there 
is  *  *  *  an  absence  of  bad  faith,  violation  of  confidence,  misrep- 
resentation, concealment,  and  other  inequitable  conduct,  *  *  *  Jf 
the  facts  upon  which  such  agreement  or  transaction  was  founded 
*  *  *  turned  out  very  differently  from  what  was  expected  or 
anticipated,  this  error,  miscalculation,  or  disappointment,  although  re- 
lating to  a  matter  of  fact  and  not  of  law,  is  not  such  a  mistake  with- 
in the  meaning  of  the  equitable  doctrine  as  entitles  the  disappointed 
party  to  any  relief.  *  *  *  j^  such  classes  of  agreements  and  trans- 
actions the  parties  are  supposed  to  calculate  the  chances,  and  they 
certainly  assume  the  risks." 

And  at  another  place  in  the  same  work  (section  849)  the  author  uses 
this  language:  "It  should  be  carefully  observed  that  this  rule  (allow- 
ing recovery  of  money  paid  under  mistake)  has  no  application  t®  com- 
promises where  doubts  have  arisen  as  to  the  rights  of  the  parties,  and 
they  have  intentionally  entered  into  an  arrangement  for  the  purpose  of 


Sec.  1)  THE    GENERAL   DOCTRINE:    MISTAKE    OF   FACT  71 

compromising  and  settling  those  doubts.  Such  compromises,  whether 
involving  mistakes  of  law  or  fact,  are  governed  by  special  considera- 
tion." 

The  foregoing  quotations  are  made  part  of  the  opinion  in  Sears  v. 
Grand  Lodge,  163  N.  Y.  374,  57  N.  E.  618,  50  L.  R.  A.  204,  as  ap- 
plicable to  a  case  very  similar  to  the  one  before  us.  In  Riegel  v.  Amer- 
ican Life  Insurance  Co.,  140  Pa.  193,  21  Atl.  392,  11  L.  R.  A.  857,  23 
Am.  St.  Rep.  225,  and  on  a  subsequent  appeal  (153  Pa.  134,  25  Atl. 
1070,  19  L.  R.  A.  166),  it  was  decided  that  the  holder  of  a  policy  ac- 
cepting its  surrender  value  under  the  assumption  that  the  assured 
was  still  alive  might,  on  proving  that  in  fact  the  insured  had  already 
died,  recover  the  balance  of  the  face  of  the  policy  which  had  matured 
by  the  death  of  the  assured  without  the  knowledge  of  either  party. 
But  it  is  evident  that,  under  these  circumstances,  there  was  a  mistake 
as  to  a  fact  not  within  tlie  contemplation  of  either  party  in  entering 
into  the  arrangement. 

In  the  care  before  us  the  question  whether  Jarvis  was  dead  was 
distinctly  within  the  contemplation  of  both  parties,  for  it  was  ex- 
pressly recited  in  the  proof  of  loss  that  he  had  been  absent  for  more 
than  seven  years,  and  had  not  been  heard  of  within  that  time.  The 
only  question  of  controversy  between  the  parties  in  determining  wheth- 
er or  not  the  insurance  money  should  be  paid  was  as  to  whether 
Jarvis  was  dead,  and  the  plaintiff  conceded  its  liability  by  voluntarily 
paying  the  claim.  In  the  absence  of  fraud  or  concealment,  the  means 
of  knowledge  as  to  the  fact  in  controversy  being  equally  accessible 
to  each  party,  the  payment  is  conclusive.  Eagan  v.  /Etna  F.  &  M. 
Ins.  Co.,  10  W.  Va.  583 ;  Mutual  Life  Ins.  Co.  v.  Wager,  27  Barb. 
(N.  Y.)   354.     *     *     * 

The  judgment  of  the  trial  court  is  therefore  affirmed.* 

*In  Mowatt  v.  Wright  (1S28)  1  Wend.  (N.  Y.)  355,  19  Am.  Dec.  508,  the 
defendant  Mrs.  Wright,  a  widow,  liad  brought  suit  to  establish  her  dower  in 
certain  lands  which  had  been  conveyed  by  her  husLand  during  coverture 
Mrs.  Wright  had  in  fact  released  her  dower  but  had  forgotten  that  fact.  The 
plaintiff,  a  subsequent  grantee  of  the  premises,  thinking  that  Mrs.  Wright 
had  released  her  dower,  but  being  unable  to  produce  evidence  of  that  fact, 
paid  her  ■'^1,000  in  full  settlement  of  her  claim.  The  plaintiff  subse<iuently 
found  the  original  document  executed  by  Mrs.  Wright  releasing  her  dower, 
and  now  sues  to  recover  back  $1,000  paid.  In  the  course  of  his  opinion  Sav- 
age, C.  J.,  said:  "In  the  present  case,  it  now  appears  tliat  the  defendant  had, 
in  fact,  no  right  to  the  money  paid  by  the  plaintiffs;  but  it  was  imid  upon 
a  claim  of  right  which  was  honestly  made  by  her;  and  the  plaintiffs  here, 
who  were  virtually  defendants  in  the  dower  suits,  acted  under  as  full  a  knowl- 
edge of  the  facts  as  the  demandant.  Slie,  in  truth,  believed  that  she  had  never 
executed  a  deed  ;  but  the  plaintiffs  acted  under  the  belief,  as  testihed  by  the 
witnesses,  that  there  was  such  a  deed  in  existence,  but  for  reasons  whicli  aro 
stated,  they  thought  that  the  payment  of  the  $1,000  was  the  shortest  and 
cheapest  way  of  settling  the  dispute.  This  sum  of  money,  then,  was  given  to 
Mrs.  Wright  to  quiet  the  claim,  in  the  language  of  Mr.  Justice  Best.  She  had 
a  right  to  consider  it  her  own  without  dispute.  She  had  probably  spent  it; 
'and  it  would  be  most  mischievous  and  unjust,  if  he  who  has  ac(iuiesci>d  in 
the  right  by  such  voluntary  payment,  should  be  at  liberty,  at  any  time  within 
the  statute  of  limitations,  to  rip  up  the  matter  and  recover  back  the  money.'    I 


72  BENEFITS   CONFERRED   BY    MISTAKE  (Cll.  2 


McARTHUR  v.  LUCE. 

(Supreme  Court  of  Michigan,  1880.     43  Mich.  435,  5  N.  W.  451,  38  Am. 

Kep,  204.) 

Error  to  Alpena. 

Marston,  C.  J.  Luce  &  Co.,  in  demanding  that  McArthur  pay 
them  for  logs  cut,  as  they  supposed,  upon  their  land,  acted  in  entire 
good  faith.  They  had  a  survey  made,  and  according  thereto  the  plain- 
tiff had  cut  logs  over  the  line.  When  the  claim  was  made  upon  the 
plaintiff  he  employed  a  surveyor  and  they  went  upon  the  land,  and 
plaintiff  then  became  satisfied  that  he  had  cut  and  taken  logs  from  off 
defendants'  land,  and  authorized  a  settlement  to  be  made,  which  was 
done.  This  was  in  1871,  and  all  parties  rested  in  the  belief  that  a 
correct  settlement  had  been  made  until  some  time  in  1875,  when  a  new 
survey  established  the  fact  that  no  logs  had  been  cut  upon  defendants' 
land,  and  this  action  was  brought  to  recover  back  the  moneys  paid, 
upon  the  claim  of  having  been  paid  under  a  mistake  of  fact. 

Where  a  claim  is  thus  made  against  another,  who,  not  relying  upon 
the  representations  of  the  claimant,  has  the  opportunity  to  and  does 
investigate  the  facts,  and  thereupon  becomes  satisfied  that  the  claim 
made  is  correct,  and  adjusts  and  pays  the  same,  I  think  such  settlement 
and  payment  should  be  considered  as  final.  If  not,  it  is  very  difficult 
to  say  when  such  disputed  questions  could  be  considered  as  finally 
settled,  or  litigation  ended.  In  the  settlement  of  disputed  questions, 
where  both  parties  have  equal  opportunity  and  facilities  for  ascer- 
taining the  facts,  it  becomes  incumbent  on  each  to  then  make  his  in- 
vestigation, and  not  carelessly  settle,  trusting  to  future  investigation 
to  show  a  mistake  of  facts  and  enable  him  to  recover  back  the  amount 
paid.  One  course  encourages  carelessness  and  breeds  litigation  after 
witnesses  have  passed  beyond  the  reach  of  the  parties ;  the  other  en- 
courages parties  in  ascertaining  what  the  facts  and  circumstances  ac- 
tually are  while  the  transaction  is  fresh  in  the  minds  of  all,  and  a  final 
and  peaceful  settlement  thereof.  Detroit  Advertiser  &  Tribune  Co.  v. 
Detroit,  43  Mich.  116,  5  N.  W.  72;  and  County  of  Wayne  v.  Ran- 
dall, 43  Mich.  137,  5  N.  W.  75. 

The  judgment  must  be  affirmed,  with  costs. ^* 

cannot  consider  this  as  a  case  of  mistake  of  fact  or  of  laTV.  Mrs.  Wright 
brought  suit  for  a  claim  which  she  thought  well  founded.  The  defendants 
believed  there  was  a  defence,  but  tliey  could  not  produce  the  evidence  of  it, 
like  the  case  of  the  lost  receipt :  they,  therefore,  paid  a  sum  of  money,  as  the 
easiest  and  cheapest  way  of  settling  the  claim.  It  is  a  voluntary  jjayment, 
though  they  would  not  have  made  it,  could  they  liave  produced  the  evidence 
of  their  title  at  the  time.  It  is  now  too  late  to  call  the  settlement  in  question. 
I  am  of  opinion  that  the  motion  to  set  aside  the  verdict  should  be  denied." 
11  Contra:   Turner  Falls  Lumber  Co.  v.  Burns  (lS9i>)  71  Vt  354,  45  Atl.  896. 


Sec.  1)  THE   GENERAL  DOCTRINE  :    MISTAKE  OF   FACT  73 

WHEADON  V.  OLDS. 
(Supreme  Court  of  Judicature  of  New  York,  1S38.     20  Wend.  174.) 

This  was  an  action  of  assumpsit,  tried  at  the  Onondaga  circuit  in 
March,  1836,  before  the  Hon.  Daniel  Moseley,  one  of  the  circuit 
judges. 

The  defendant  agreed  to  sell  to  the  plaintiff  from  sixteen  to  twenty- 
hundred  bushels  of  oats,  at  forty-nine  cents  per  bushel.  The  deliv- 
ery of  the  oats  was  commenced  by  removing  them  from  a  store-house 
to  a  canal  boat;  tallies  were  kept,  and  when  the  tallies  amounted  to 
500,  it  was  proposed  to  guess  at  the  remainder;  and  after  a  while  it 
was  agreed  between  the  parties  to  call  the  whole  quantity  1,900  bush- 
els, and  the  plaintiff  accordingly  paid  for  that  quantity  at  the  stipu- 
lated price.  When  the  oats  came  to  be  measured  it  was  ascertained 
that  there  were  only  1,488  bushels  delivered.  It  was  then  found  that 
the  mistake  had  happened  by  both  parties  assuming  as  the  basis  of  the 
negotiation,  fixing  the  quantity  of  1,900  bushels,  that  500  bushels  had 
been  loaded  in  the  boat  at  the  time  Avhen  they  undertook  to  guess  at 
the  residue,  whereas  in  fact  only  250  bushels  had  been  loaded — the 
tallies  representing  half  bushels  and  not  bushels,  and  that  the  parties 
supposed  that  the  quantity  loaded  was  not  a  quarter  of  the  whole 
quantity.  The  vendor  refusing  to  refund  a  portion  of  the  money 
received  by  him,  this  action  was  brought  by  the  purchaser,  who  de- 
clared for  money  had  and  received,  and  delivered  a  bill  of  particulars 
stating  the  contract  between  the  parties  that  the  oats  were  delivered, 
and  "that  in  measuring  said  oats"  a  mistake  was  made,  whereby  the 
plaintiff  paid  the  defendant  "for  about  300  bushels  more  oats  than  he 
received."  The  defendant  proved  by  one  witness  that  the  plaintiff 
said  he  would  take  the  oats  at  1,900  bushels,  hit  or  miss,  and  by 
another  that  he  had  acknowledged  that  he  took  the  oats  at  that  quan- 
tity at  his  own  risk.  He  further  proved  that  before  the  boat  left  the 
store-house,  on  dissatisfaction  being  expressed  by  a  friend  of  the 
plaintiff  who  was  to  advance  the  money  for  him,  as  to  the  mode  of 
ascertaining  the  quantity,  that  he  told  them  that  if  they  were  dis- 
satisfied with  the  quantity,  to  put  the  oats  back  into  the  store-house, 
and  pay  him  for  his   trouble. 

When  the  evidence  was  closed  the  counsel  for  the  defendant  stated 
that  he  should  not  question  the  fact  that  the  parties  were  mutually 
in  error  in  supposing  that  500  bushels  of  oats  had  been  put  on  board 
when  in  fact  only  250  bushels  had  been  put  on  board  at  the  time  of 
the  bargain  in  reference  to  the  quantity,  but  insisted  that  the  bargain 
was  obligatory  upon  the  plaintiff,  and  that  therefore  he  was  not  enti- 
tled to  recover.  He  also  insisted  that  the  proof  varied  from  the  bill 
of  particulars;  and  thirdly,  that  at  all  events  the  plaintiff  was  only 
entitled  to  recover  for  the  deficiency  of  250.  bushels  in  the  first  es- 
timated quantity.  The  judge  charged  the  jury  that  if  they  should  find 
that  the  parties  at  the  time  of  the  bargain  in  reference  to  the  1,900 


74  BENEFITS   CONFERRED   BY   MISTAKE  (Ch.  2 

bushels  were  in  error  as  to  the  quantity  measured,  and  supposed  that 
500  bushels  had  been  measured  when  in  fact  the  quantity  measured 
was  only  250  bushels,  and  had  based  the  bargain  upon  that  supposition, 
then  that  the  plaintiff  was  entitled  to  recover  for  tlie  deficiency  of  the 
1,900  bushels.  The  jury  found  a  verdict  for  the  plaintiff  for  $190. 
The  defendant  moves  for  a  new  trial. 

Co  WEN,  J.  The  objection  at  variance  from  the  bill  of  particulars 
was  too  general.  It  should  have  been  stated  whether  it  was  in  quan- 
tity, or  sum,  or  in  what  else. 

The  mistake  as  proved  went  not  only  to  the  quantity  measured,  but 
the  jury  found,  under  the  charge  of  the  judge,  that  relatively  it  influ- 
enced the  entire  agreement  to  take  the  oats  at  1,900  bushels.  One  in- 
gredient of  estimating  the  residue,  as  talked  of,  was  the  assuming  that 
the  supposed  500  bushels  was  one-fourth  of  the  pile,  which  would  op- 
erate unfavorably  to  the  plaintiff,  if  he  reasoned  from  the  size  of  the 
smaller  to  tliat  of  the  larger  pile.  Here  was  an  admitted  error,  which 
certainly  influenced  the  conduct  of  the  plaintiff  to  the  extent  of  250 
bushels;  and,  as  we  must  take  it  on  the  finding  of  the  jury,  to  the 
full  amount  which  the  oats  came  short  of  the  1,900  bushels.  All  the 
excess  of  payment  arose  from  a  count  of  half  bushels  as  bushels. 
And  the  only  question  in  the  least  open  is,  whether  an  agreement, 
based  on  that  mistake,  to  accept  the  oats  at  the  plaintiff's  own  risk  of 
the  quantity,  shall  conclude  him. 

The  mistake  which  entitles  to  this  action  is  thus  stated  by  the  late 
Chief  Justice  Savage  from  the  civil  law :  "An  error  of  fact  takes  place, 
either  when  some  fact  which  really  exists  is  unknown,  or  some  fact 
is  supposed  to  exist  which  really  does  not  exist."  Mowatt  v.  Wright, 
1  Wend.  360,  19  Am.  Dec.  508.  He  cites  the  words  of  2  Ev.  Poth. 
437.  And  see  1  Dom.  248,  B.  1,  tit.  18,  §  1,  pi.  1.  In  judging  of 
its  legal  effect,  we  must  look  "to  the  regard  which  the  contractors  have 
had  to  the  fact  which  appeared  to  them  to  be  true."  1  Dom.  250,  B. 
1,  tit.  18,  §  1,  pi.  11.  And  when  we  see  that  the  agreement  is  the  result 
of  such  a  regard,  or,  as  the  judge  said  to  the  jury,  is  based  upon  it,  I 
am  not  aware  of  any  case  or  dictum,  that,  because  part  of  the  agree- 
ment is  to  take  at  the  party's  own  risk,  or  as  the  parties  expressed  it 
here,  hit  or  miss,  it  therefore  forms  an  exception  to  the  general  rule. 
The  agreement  to  risk  was,  pro  tanto,  annulled  by  the  error.  The 
money  was  paid  under  a  contract  void  for  so  much  as  the  oats  fell 
short  of  1,900  bushels.  The  effect  would  have  been  very  different, 
had  the  truth  been  known  to  the  plaintiff.  See  Domat  as  before  cited. 
The  foundation  of  the  arrangement  to  take  at  the  plaintiff's  risk,  was 
a  misreckoning,  one  number  being  put  instead  of  another,  "which," 
says  Domat,  pi.  12,  "is  a  kind  of  error  in  fact  different  from  all  other 
errors,  in  that  it  is  always  repaired." 

The  motion  for  a  new  trial  is  denied.^ ^ 

12  "The  liability  of  a  putative  father  for  the  support  of  his  bastard  child 
is  created  wholly  by  statute  (he  not  being  liable  at  common  law),  and  the 


Sec.  1)  THE   GENERAL  DOCTRINE  :    MISTAKE  OF  FACT  75 

(C)  Mistake  as  to  Collateral  Matters 

AIKEN  V.  SHORT. 
(Court  of  Exchequer,  1S56.     1  Hurl.  &  N.  210.) 

Action  for  money  had  and  received.    Plea,  never  indebted.  . 

At  tJie  trial  before  Piatt,  B.,  at  tlie  Middlesex  sittings,  in  last  Hilary- 
Term,  the  following  facts  vi^ere  proved :  The  defendant  was  the  widow 
and  sole  executrix  of  Francis  Short,  who  died  in  1853.  One  Edwin 
Carter  had  made  a  will,  dated  February,  1846,  by  which  he  gave  his 
property  equally  amongst  his  eight  brothers  and  sisters,  of  whom 
George  Carter  was  one.  This  will  was  proved  after  his  death,  which 
took  place  in  1847,  by  John  Carter  the  younger.  George  Carter  being- 
largely  indebted  to  Stuckey's  Banking  Company,  by  deed  dated  the  15th 
January,  1855,  conveyed  to  the  Banking  Company  his  one-eighth  share 
in  the  property  of  Edwin  Carter,  to  which  he  professed  to  be  entitled 
under  this  will,  subject  to  the  charges  upon  it.  George  Carter  was  at 
that  time  indebted  to  the  defendant,  as  executrix  of  Francis  Short,  in 
the  sum  of  £200.,  which  was  secured  by  an  equitable  mortgage  of  the 
property  devised  to  him  by  Edwin  Carter's  will,  and  by  the  joint  and 
several  bond  of  George  Carter,  John  Carter,  and  Charles  Carter,  dated 
October,  1850.  The  equitable  charge  was  recited  in  the  deed  of  the 
15th  January,  and  at  the  time  of  the  execution  of  that  deed  it  was 
agreed,  as  between  George  Carter  and  the  Bank,  that  the  Bank  should 
pay  off  this  sum  of  £200.  and  interest.  In  May,  1855,  the  Bank  made 
arrangements  to  sell  the  property.  Before  the  execution  of  the  con- 
veyance one  Richardson,  acting  as  attorney  for  the  defendant,  applied 
to  the  Bank  for  payment  of  the  £200.  and  interest,  stating  that  he  had 
applied  to  George  Carter,  who  had  referred  him  to  the  Bank.     The 

remedy  there  prescribed  must  be  pursued.  The  statute  authorizes  a  compro- 
mise and  arrangement  with  the  putative  father  relative  to  the  support  of  such 
child.  The  compromise  under  the  statute  is  merely  a  mode  of  getting  indemni- 
ty on  the  part  of  the  county  for  the  snpiiort  of  the  bastard.  *  ♦  *  The 
plaintiif  was  charged  with  being  the'  fatlier  of  a  child  likely  to  be  born  a 
bastard,  of  which  Louisa  Hehr  was  alleged  to  be  pregnant.  Both  the  plaintiif 
and  defendant  acted  upon  the  erroneous  assumjjtion  that  she  was  pregnant, 
and  they  compromised  relative  to  the  support  of  the  child  that,  it  was  sui> 
posed,  would  be  born  a  bastard  and  become  chargeable  to  the  county.  *  ♦  * 
The  fact  as  to  who  was  the  father  of  the  child  may  have  been  waived  by  the 
compromise,  but  not  the  vital  fact  which  gave  it  all  its  force  and  without 
the  existence  of  which  the  superintendent  had  no  power  to  act,  viz.,  the  preg- 
nancy of  Louisa  Hehr.  There  was  no  disagreement  or  compromise  between 
the  plaintiff  and  the  defendant  as  to  the  fact  of  pregnancy.  They  both  be- 
lieved and  acted  upon  the  assumption  that  she  was  pregnant,  and  it  turns  out 
that  they  were  both  mistaken.  As  there  was  no  pregnancy,  the  county  has 
not  been  put  to  any  expense,  and  never  can  be,  and  as  the  plaintiff  paid  his 
money  to  indemnify  the  county  under  a  mistake  of  fact,  I  think  Le  was  en- 
titled to  maintain  this  action.  It  has  been  repeatedly  held,  that  when  money 
was  paid  under  a  mistake  which  there  was  no  ground  to  claim  in  conscience, 
the  party  may  recover  back."     Rheel  v.  Hicks  (ISGl*)  25  N.  Y.  281). 

But  see  Kowalke  v.  IMilwaukee  Electric  Railway  &  Light  Co.  (1899;  103  Wis. 
472,  79  N.  W.  762,  74  Am.  St.  Rep.  S77. 


76  BENEFITS  CONFERRED   BY   MISTAKE  (Cll.  2 

Bank  accordingly,  through  their  attorney,  paid  to  the  defendant  the 
sum  of  £226.  16s.  6d.  The  bond  and  instrument  of  mortgage  were 
handed  over  by  the  defendant  to  the  Bank,  and  they  took  a  receipt  for 
the  money  due  on  tlie  bond  and  mortgage.  In  August,  1855,  John 
Carter  produced  a  will  of  Edwin  Carter,  dated  April,  1846,  which  ap- 
peared to  be  the  true  last  will  of  Edwin  Carter.  This  will,  the  existence 
of  which  had  been  kept  secret  by  the  Carters,  had  been  prepared  in 
the  office  of  Francis  Short,  the  defendant's  testator,  and  was  attested 
by  him.  Under  this  will  George  Carter  took  only  an  annuity  of  £100., 
which  ceased  upon  his  making  any  assignment.  The  Bank  then  applied 
to  the  defendant  to  refund  the  £226.  16s.  6d.  previously  paid  by  them 
to  her,  and  on  her  refusal  to  repay  the  money  brought  the  present  action 
to  recover  it  back.  Upon  these  facts,  the  learned  Judge  directed  a  ver- 
dict for  the  plaintiff,  reserving  leave  to  the  defendant  to  move  to  enter 
a  verdict  for  her.    The  defendant  obtained  a  rule  nisi. 

BramwelIv,  B.^^  In  order  to  entitle  a  person  to  recover  back  mon- 
ey paid  under  a  mistake  of  fact,  the  mistake  must  be  as  to  a  fact  which, 
if  true,  would  make  the  person  paying  liable  to  pay  the  money;  not 
where,  if  true,  it  would  merely  make  it  desirable  that  he  should  pay  the 
money.  Here,  if  the  fact  was  true,  the  bankers  were  at  liberty  to  pay 
or  not,  as  they  pleased.  But  relying  on  the  belief  that  the  defendant 
had  a  valid  security,  they,  having  a  subsequent  legal  mortgage,  chose 
to  pay  off  the  defendant's  charge.  It  is  impossible  to  say  that  this  case 
falls  within  the  rule.  The  mistake  of  fact  was,  that  the  Bank  thought 
that  they  could  sell  the  estate  for  a  better  price.  It  is  true  that  if  the 
plaintiff  could  recover  back  this  money  from  the  defendant,  there  would 
be  no  difficulty  in  the  way  of  the  defendant  suing  Carter.  In  Pritchard 
V.  Hitchcock,  6  M.  &  G.  151,  a  creditor  was  held  to  be  at  liberty  to  sue 
upon  a  guarantee  of  bills,  though  the  bills  had  been  in  fact  paid,  but 
the  money  afterwards  recovered  back  by  tlie  assignees  of  the  acceptor, 
as  having  been  paid  by  way  of  fraudulent  preference.  But  that  does 
not  show  that  the  plaintiff's  can  maintain  this  action,  and  I  am  of  opin- 
ion they  cannot,  having  voluntarily  parted  with  their  money  to  pur- 
chase that  which  the  defendant  had  to  sell,  though  no  doubt  it  turned 
out  to  be  different  to,  and  of  less  value  than,  what  they  expected. 

Rule  absolute,^* 

IS  The  concurring  opinions  of  Pollock,  C.  B.,  and  Piatt,  B.,  are  omitted.  The 
former  characterized  the  situation  Jis  follows:  "They  [the  plaiutih's]  should 
have  taken  care  not  to  have  paid  over  the  money  to  get  a  valueless  security ; 
but  the  defendant  has  nothing  to  do  with  their  mistake." 

14  In  Harris  v.  Lloyd  (1839)  5  M.  &  W.  4-32,  the  plaintiffs  were  assignees 
for  the  benefit  of  the  creditors  of  one  Carter,  aud  to  save  property  for  the 
creditors  they  paid  defendant,  the  sheriff,  the  amount  of  an  execution  levied 
on  the  goods  of  Carter.  It  subsequently  came  to  light  that  Carter  had  com- 
mitted an  act  of  bankruptcy  prior  to  the  assignment  for  creditors  to  the  plain- 
tiffs, whereupon  they  brought  action  for  money  had  aud  received  to  recover 
back  the  money  so  paid  to  the  sheriff  "as  having  been  paid  under  a  mistake 
of  fact,  they  not  having  at  the  time  had  any  knowledge  of  the  act  of  bank- 
ruptcy." A  nonsuit  was  upheld.  In  tlie  course  of  his  opinion,  Lord  Abinger, 
C.  B.,'said:   "The  short  answer,  however,  to  the  action  is  that  the  money  was 


Sec,  1)  THE   GENERAL  DOCTRINE :    MISTAKE   OF   FACT  77 


LANGEVIN  V.  CITY  OF  ST.  PAUL. 

(Supreme  Court  of  Minnesota,  1892.     49  Minn.  189,  51  N.  W.  817,  15  L.  R. 

A.  766.) 

Appeal  by  Edward  Langevin,  now  deceased,  from  orders  of  the  Dis- 
trict Court  of  Ramsey  County,  Kerr,  J.,  made  January  23,  1890,  sus- 
taining demurrers  to  his  complaint. 

Dickinson,  J.^°  The  defendants  demurred  separately  to  the  com- 
plaint. The  demurrers  were  sustained,  and  the  plaintiff  appealed. 
Lots  3,  4,  and  5,  in  block  5,  of  Bazille  &  Robert's  addition  to  West  St. 
Paul,  were  contiguous  lots  fronting  east  on  Custer  street,  lot  5  being 
south  of  lots  3  and  4.  Fairfield  avenue  ran  along  the  south  side  of  lot 
5.  The  length  of  that  lot  along  Fairfield  avenue  was  150  feet.  The 
plaintiff's  intestate  owned  all  of  the  block  excepting  lot  5.^*  In  1886, 
for  the  improvement  of  Fairfield  avenue,  two  separate  assessments 
were  made  upon  lots  3,  4,  and  5,  lots  3  and  4  being  included  in  the 
assessment  by  reason  of  the  erroneous  belief  that  they,  as  well  as  lot 
5,  fronted  upon  Fairfield  avenue.  The  assessments  not  being  paid, 
judgments  therefor  were  duly  rendered  against  the  three  Tots  jointly  in 
the  years  1886  and  1887,  respectively,  and  thereupon  the  property  was 
sold,  as  provided  by  law,  to  certain  private  parties.  For  reasons  stated 
in  the  complaint,  the  intestate  did  not  know  that  any  of  these  pro- 
ceedings affected  the  lots  owned  by  him  until  after  the  judgment  sale. 

In  May,  1889,  the  intestate,  acting  through  an  agent,  redeemed  the 
three  lots  from  such  sales,  paying  to  the  treasurer  of  the  city  for  that 
purpose  the  sum  of  $1,728.10.  When  this  redemption  was  made,  the 
agent  of  tlie  intestate  and  the  city  treasurer  supposed  that  lot  5  be- 
longed to  the  intestate,  and  that  all  of  the  lots  fronted  on  Fairfield  ave- 
nue, and  hence  were  liable  to  be  so  assessed.  On  learning  the  facts, 
the  intestate  demanded  of  the  city  treasurer  a  return  of  the  money  so 
paid  for  redemption.  Such  repayment  was  refused,  for  the  alleged 
reason  that  the  treasurer  had  paid  the  money  to  the  persons  who  had 
purchased  at  the  sales  from  which  such  redemption  was  made. 

The  complaint  shows  no  right  to  recover  against  the  city.  Upon  the 
facts  stated,  the  judgment  was  not  invalid.  No  defect  or  irregularity 
in  the  proceedings  is  alleged,  unless  the  mistake  as  to  the  situation  of 
the  property  is  to  be  excepted.  Indeed,  it  is  expressly  averred  that  the 
judgment  was  duly  rendered.  The  fact  that  the  plaintiff's  two  lots 
did  not  abut  on  the  street  for  the  grading  of  which  they  were  assessed 
did  not  affect  the  jurisdiction  of  the  court  or  the  validity  of  the  judg- 

not  paid  under  a  mistake  of  fact  but  upon  a  speculation,  the  failure  of  which 
oanDot  entitle  the  plaintiffs  to  recover  it  back."  Alderson,  B.,  said :  "This 
is  money  paid,  not  under  a  mistake,  but  under  a  ban?ain.  True,  it  turns  out 
to  be  a  bad  bargain ;  but  that  will  not  affect  its  validity." 

15  The  statement  of  f^cts  is  omitted. 

16  Lot  5  was  owned  by  one  Wollam,  since  deceased.  The  defendant  Kipp 
was  Wollam's  administrator. 


78  BENEFITS   CONFERRED   BY   MISTAKE  (Ch.  2 

ment.  They  were  liable  to  assessment  as  property  which  might  be 
deemed  benefited  by  the  improvement,  (Sp.  Laws,  1874,  c.  1,  subc.  7, 
§,§  3,  14,  23,  26;  Comp.  Charter  1884,  §§  130,  139,  159,  162;)  and  even 
if  there  was  a  mistake  as  to  the  fact,  in  the  proceedings  preliminary  to 
the  judgment,  the  judgment  was  valid,  (Dousman  v.  City  of  St.  Paul, 
23  Minn.  394.)  The  assessments  were  merged  in  the  judgment,  and 
whether  they  were  properly  or  erroneously  made  is  not  now  to  be  con- 
sidered. The  appellant  cites  a  provision  of  the  charter  relating  to  side- 
walks which  has  no  application  to  the  case  before  us.  If,  upon  the 
facts  stated,  the  action  is  maintainable  against  the  city,  it  is  as  in  as- 
sumpsit for  money  had  and  received ;  and  so  the  plaintiff  treats  the 
case,  resting  the  right  of  recovery  upon  the  alleged  mutual  mistake  of 
fact.  But  it  is  not  maintainable  on  that  ground.  To  justify  a  recovery 
in  such  an  action,  the  money  must  have  been  received  under  such  cir- 
cumstances that,  in  equity  and  good  conscience,  the  defendant  ought 
not  to  retain  it.  The  mistake,  where  that  is  the  foundation  of  the  ac- 
tion, must  relate  to  a  fact  which  is  material,  essential  to  the  transaction 
between  the  parties.  A  payment  made  under  the  influence  of  a  mistake, 
concerning  a  fact  which,  even  if  it  were  as  it  is  supposed  to  be,  would 
create  no  legal  obligation,  but  merely  operate  as  an  inducement  upon 
the  mind  of  the  party  paying  the  money,  the  other  party  being  without 
fault,  would  not  justify  a  recovery  as  for  money  had  and  received. 
Aiken  v.  Short,  1  Hurl.  &  N.  210;  Leake,  Cont.  103.  See,  also.  Cham- 
bers v.  Miller,  13  C.  B.  (N.  S)  125. 

The  city  was  entitled  to  receive  the  money  for  redemption  of  the 
property,  if  any  one  having  the  legal  right  to  redeem  should  elect  to 
do  so.  It  was  not  only  legally  authorized,  but  required,  to  receive  the 
money,  and  neither  its  authority  nor  obligation  was  in  any  manner  af- 
fected by  the  fact  concerning  which  a  mistake  is  alleged.  It  made  no 
difference  to  it  whether  the  plaintiff  owned  lot  5  or  not,  nor  whether  or 
not  lots  3  and  4,  which  the  plaintiff  did  own,  fronted  on  the  street  im- 
proved. Such  facts  were  whoily  immaterial,  so  far  as  its  right  and  duty 
to  receive  the  money  was  concerned.  The  plaintiff's  property,  lots  3 
and  4,  had  been  sold  pursuant  to  the  judgment,  in  connection  with  lot 
5.  The  plaintiff  was  entitled  to  redeem  the  whole  property  by  paying 
to  the  city  the  money  necessary  therefor.  It  was  necessary  for  him 
to  do  this  if  he  would  save  his  own  property.  If  he  chose  to  do  it,  the 
city  was  equally  bound  to  receive  the  money,  whatever  the  fact  might 
be  concerning  which  a  mistake  is  alleged.  Nor  was  the  supposed  obli- 
gation of  the  plaintiff  in  any  way  affected  by  the  alleged  mistake.  He 
was  at  liberty  to  pay  or  not,  as  he  should  deem  to  be  most  for  his  in- 
terest. Plainly,  the  fact  in  question  was  in  no  way  material,  except  as 
it  might  influence  the  plaintiff  in  determining  for  himself  whether  or 
not  he  would  make  redemption.  It  was  not  in  any  proper  sense  a  mu- 
tual mistake  of  an  essential  fact.  As  he  voluntarily  paid  the  money, 
and  thereby  effectually  redeemed  his  land,  and  as  the  city  ought  to 
have  received  it,  irrespective  of  what  may  be  the  truth  as  to  the  fact 


Sec.  1)  THE   GENERAL   DOCTRINE  :     MISTAKE   OF   FACT  79 

in  question,  it  is  under  no  legal  or  moral  duty  to  repay  it  merely  be- 
cause his  election  to  pay  was  influenced  by  an  erroneous  conception 
as  to  a  fact  which  concerned  him  only,  and  not  the  other  party. 

Another  reason  would  stand  in  the  way  of  a  recovery.  The  refusal 
of  the  city  treasurer  to  comply  with  the  demand  of  repayment  was 
placed  on  the  ground  that  the  money  had  been  paid  to  the  purchasers 
under  the  judgment  sale,  who  were  legally  entitled  to  receive  it.  The 
complaint,  alleging  this  fact,  docs  not  rebut  the  inference,  naturally  to 
be  drawn  against  the  pleader,  by  alleging  that  in  fact  it  had  not  been 
so  paid.  But  we  have  preferred  to  place  our  decision  on  the  broader 
ground  above  stated.    The  demurrer  of  the  city  was  properly  sustained. 

We  are  not  certain  that  we  quite  understand  tlie  position  of  the  appel- 
lant as  respects  the  other  defendant,  the  administrator  of  the  estate  to 
which  lot  5  belonged.  Both  in  his  original  and  reply  brief  it  is  clearly 
intimated  that  this  defendant  was  joined  as  a  party  with  the  city  only 
upon  tlie  theory  that  it  might  be  considered  by  the  court  that  this  was 
necessary,  even  as  respects  the  cause  of  action  alleged  against  the  city. 
If  the  case  were  so  treated,  the  fact  that  there  is  no  right  of  action 
against  the  city  would  also  control  the  decision  upon  the  demurrer  of 
the  other  defendant.  But  the  appellant  seems  to  go  further  in  his 
brief,  and  to  claim  a  right  of  recovery  against  this  other  defendant; 
and  this  relief  is  prayed  in  the  complaint.  There  may  be  a  right  of 
recovery,  but  the  rules  of  pleading  forbid  such  a  joinder  of  different 
causes  of  action  against  separate  defendants, — Gen.  St.  1878,  c.  66, 
§118;  Trowbridge  v.  Forepaugh,  14  Minn.  133  (Gil.  100),— and  for 
this  reason  the  demurrer  should  be  sustained.  The  grounds  upon  which 
a  recovery  is  sought  against  the  different  defendants  are  essentially 
different. 

The  causes  of  action  are  quite  distinct.  There  is  no  joint  liability, 
and,  if  we  assume  that  there  is  a  several  liability  on  the  part  of  the  dif- 
ferent defendants,  the  liability  of  each  is  distinct  from  that  of  tlie  other, 
and  rests  upon  different  facts  as  well  as  different  principles. 

Both  the  orders  appealed  from  are  affirmed. 


BUFFALO  V.  O'MALLEY. 

(Supreme  Court  of  Wisconsin,  1884.     61  Wis.  255,  20  N.  W   913,  50  Am, 

Rep.  137.) 

Appeal  from  the  Circuit  Court  for  Bayfield  County. 

Action  to  recover  the  sum  of  $40  which  was  claimed  to  have  been 
overpaid  by  the  plaintiff  to  the  defendant  upon  a  contract  for  the 
transportation  of  tan-bark.  The  complaint  alleged  that  such  over- 
payment was  ;:iade  under  a  mistake  of  fact  as  to  the  quantity  of  the 
bark,  arising  from  ignorance  on  the  part  of  the  plaintiff  as  to  the  man- 
ner of  piling  and  measuring  tan-bark  for  shipment.  The  answer  was 
a  general  denial. 


80  BENEFITS   CONFERRED   BY   MISTAKE  (Ch.  2 

The  evidence  given  at  the  trial  will  sufficiently  appear  from  the 
opinion.  A  motion  for  a  nonsuit,  made  at  the  close  of  the  plaintiff's 
testimony,  was  denied.  There  was  a  verdict  and  judgment  for  tlie 
plaintiff,  and  the  defendant  appealed. 

Cole,  C.  J.^^  In  whatever  light  this  ca-se  is  considered,  we  think 
the  motion  for  a  nonsuit  should  have  been  granted.  There  is  no  proof 
of  fraud  in  the  transaction,  and  as  little  of  any  mistake  of  fact  for 
which  the  plaintiff'  is  entitled  to  relief.  The  defendant  was  to  be 
paid  at  the  rate  of  two  dollars  per  cord  for  carrying  tlie  bark  in  ques- 
tion from  the  place  of  shipment  to  Duluth.  There  is  no  dispute  but 
that  this  was  the  agreement.  Now  the  contention  of  plaintiff'  is  that 
under  a  mistake  as  to  the  quantity  he  paid  the  defendant  for  trans- 
porting 60  cords,  when  there  was  only  40  cords  according  to  the  Duluth 
measurement.  But  there  is  not  a  scintilla  of  proof  that  the  quantity 
of  bark  was  to  be  ascertained  or  determined  according  to  the  manner 
of  piling  and  measuring  tan-bark  at  Duluth.  It  does  not  appear  that 
either  party  so  understood  the  contract  as  to  the  carriage.  The  plain- 
tiff admitted  that  he  measured  the  bark  himself,  when  it  was  piled  on 
the  bank,  and  that  there  were  63  cords.  When  he  paid  for  it  he 
thought  it  would  probably  not  fall  short  more  than  3  cords.  He  sup- 
posed a  cord  of  bark  was  a  pile  8  feet  long,  4  feet  high,  and  4  feet 
wide,  as  it  is.  So,  on  the  bank  where  the  bark  was  piled,  it  actually 
measured  63  cords,  to  the  knowledge  of  the  plaintiff.  But  the  plain- 
tiff seems  to  have  been  ignorant  of  the  fact  that  where  bark  was  curled 
badly,  as  his  bark  was,  it  was  customary  to  make  allowance  for  it  in 
the  measurement  when  sold ;  or  to  pile  the  bark  tight  by  tramping  it 
down  and  filling  up  the  holes.  And  this  was  what  caused  the  shrink- 
age in  the  bark  when  it  was  piled  at  Duluth  for  sale. 

But,  as  we  have  said,  there  is  not  a  particle  of  evidence  that  the 
defendant  agreed  to  transport  the  bark  for  two  dollars  per  cord  ac- 
cording to  Duluth  measurement.  No  such  contract  was  made.  Upon 
what  ground,  then,  can  the  plaintiff  claim  the  right  to  recover  back 
part  of  the  money  which  he  paid  the  defendant  for  transportation? 
There  was  60  cords  or  more  according  to  the  bank  measurement,  and 
the  plaintiff  admits  that  he  was  to  pay  at  the  rate  of  two  dollars  per 
cord  for  carrying  it  to  Duluth.  Suppose  a  part  of  the  bark  had  been 
rejected  by  buyers  in  Duluth  because  not  merchantable,  could  it  be 
claimed  the  defendant  must  lose  his  transportation  of  tlie  unsalable 
bark?  There  would  be  quite  as  much  reason  in  claiming  that  the  de- 
fendant should  stand  the  loss  in  the  case  supposed,  as  there  is  in  say- 
ing, upon  the  testimony  in  the  record,  he  should  be  paid  for  only  40 
cords  because  there  is  a  shrinkage  of  20  cords  when  it  was  piled  as 
required  in  the  Duluth  market.  In  truth,  the  evidence  shows  that  there 
was  no  mistake  as  to  the  bank  measurement,  and  we  must  assume,  in 
the  absence  of  all  proof  to  the  contrary,  that  the  parties  contracted  with 

17  A  portion  of  the  opinion  is  omitted. 


Sec.  1)  THE   GENERAL   DOCTRINE  :    MISTAKE   OF  FACT  81 

reference  to  that  measurement.  It  follows  from  this  that  there  was 
no  overpayment. 

Now,  to  entitle  the  plaintiff  to  recover,  he  was  bound  to  prove,  either 
that  there  was  a  mistake  in  the  bank  measurement,  that  there  was  not 
60  cords  as  there  piled,  or  that  the  defendant  agreed  to  carry  the  bark 
for  two  dollars  per  cord  according  to  the  Dulutli  measurement.  Nei- 
ther case  was  established  by  the  evidence.  It  is  needless  to  observe, 
courts  do  not  relieve  against  every  mistake  a  party  may  make  in  his 
business  transactions.  A  mistake  in  a  matter  of  fact,  to  be  the  ground 
of  relief,  must  be  of  a  material  nature,  inducing  or  influencing  the 
agreement,  or  in  some  matter  to  which  the  contract  is  to  be  applied.  It 
is  obvious  the  mistake  which  the  plaintiff  made  was  in  supposing  that 
curled  bark,  piled  in  the  loose  manner  his  bark  was  piled,  would  hold 
out  in  measure  when  piled  as  dealers  required.  But  this  was  a  mistake 
as  to  a  collateral  fact,  which  had  nothing  to  do  with  the  contract  of 
carriage.  It  is  said  the  plaintiff  paid  for  the  carriage  upon  the  belief 
that  there  was  60  cords  of  it,  and  that  this  belief  was  founded  upon 
his  having  measured  tlie  bark  on  the  bank.  He  certainly  was  not  mis- 
taken as  to  the  quantity  of  the  bark  on  the  bank,  but  was  mistaken 
in  supposing  that  a  dealer  would  take  it  at  Duluth  piled  in  the  manner 
he  had  piled  jt,     *     *     * 

It  follows  from  these  views  that  the  nonsuit  should  have  been  grant- 
ed. Judgment  of  the  circuit  court  is  reversed,  and  a  new  trial  or- 
dered.^® 

18  "It  is  clear,  from  these  and  other  illustrations  which  might  be  given,  that 
a  court  of  equity  will  not  give  relief  in  all  eases  of  mistake.  There  are  many 
extrinsic  facts  surrounding  every  business  transaction  which  have  an  impor- 
tant bearing  and  influence  upon  its  results.  Some  of  them  are  generally  un- 
known to  one  or  both  of  the  parties,  and  if  known  miglit  have  prevented  the 
transnction.  In  such  cases,  if  a  court  of  equity  could  intervene  and  grant  re- 
lief, because  a  party  was  mistaken  as  to  such  a  fact  which  would  have  pre- 
vented him  from  entering  into  the  transaction  if  he  had  known  the  truth,  there 
would  be  such  an  uncertainty  and  instability  in  contracts  as  to  lead  to  much 
embarrassment.  As  to  all  such  facts,  a  party  niust  rely  upon  his  own  circum- 
spection, examination  and  inquiry ;  and  if  not  imposed  upon  or  defrauded,  he 
must  be  held  to  such  contracts."  Per  Earl,  J.,  in  Dambmann  v.  Schulting 
(1S7S)  75  N.  Y.  55. 

An  extreme  instance  of  the  doctrine  announced  by  the  principal  case  is 
found  in  Cleveland-Cliffs  Iron  Co.  v.  East  Itasca  Mining  Co.  (lOOC)  146  Fed. 
232,  76  C.  C.  A.  598  (facts  stated  in  note,  page  168,  infra). 
Thitbs.Quasi  Cont. — 0 


82  benefits  conferred  by  mistake  (ch.  2 

11.  Defenses 

(AJ  Retention  of  Benefit  by  Defendant  Not  Unconscionable 

AIUNT  V.  STOKES. 

(Court  of  King's  Bench,  1792.     4  Term  R.  561.) 

.This  was  an  action  to  recover  £2004.  3s.  4d.  for  money  had  and  re- 
ceived by  the  defendants  for  tlie  use  of  the  plaintiffs  as  executors  of 
A.  Mcintosh :  the  defendants  pleaded  the  general  issue ;  and  at  the 
trial  a  special  case  was  reserved,  stating  the  following  facts : 

In  January,  1785,  tlie  plaintiff's  testator  Alexander  Mcintosh  was  at 
Calcutta  in  Bengal,  in  the  East  Indies,  with  the  ship  "Hussar,"  carry- 
ing Danish  colours,  whereof  he  was  at  that  time  master  and  owner. 
By  the  laws  of  Denmark,  all  persons  who  are  masters  of  ships  belong- 
ing to  Danish  ports,  and  carrying  the  Danish  flag,  must  be  either  nat- 
ural-born subjects  of  the  kingdom  of  Denmark,  or  become  denizens  of 
Denmark,  and  take  the  oaths  of  allegiance  to  the  King  of  Denmark. 
On  the  6th  of  January,  1785,  Mcintosh  borrowed  at  Calcutta  of  the  de- 
fendants (being  British  subjects)  20,000  current  rupees  upon  the  terms 
mentioned  in  the  condition  of  a  respondentia  bond  (which  was  stated). 
A.  Mcintosh  soon  afterwards  sailed  in  the  ship  the  "Hussar," 
with  Danish  colours,  from  Calcutta  to  the  coast  of  Coromandel, 
and  there  took  goods  on  board,  and  from  tlience  sailed  for  Copen- 
hagen. In  December,  1785,  A.  Mcintosh,  died,  having  first  made  his 
will,  and  appointed  the  plaintiffs  and  four  others  executors.  The 
plaintiffs  alone  proved  the  will  in  the  Prerogative  Court  of  Canter- 
bury. On  12th  October,  1786,  the  plaintiffs,  upon  application  to  them 
by  the  defendants,  paid  to  the  defendants  i2004.  3s.  4d.  in  discharge 
of  the  bond  so  entered  into  by  Mclntosh.^^ 

Romilly,  for  the  plaintiffs,  made  three  points:  1st,  the  defendants 
could  not  have  recovered  this  money  on  the  bond,  either  from  the  plain- 
tiffs or  their  testator,  the  transaction  being  void  by  stat.  7  Geo.  I,  c. 
21,  §  2;  and  21  Geo.  Ill,  c.  65,  §  29-°  (which  was  admitted).  2dly, 
the  plaintiffs,  having  paid  it,  are  entitled  to  recover  it  back.  In  all 
cases,  except  two,  where  a  party  has  paid  money  under  a  mistake,  ei- 
ther of  fact  or  of  law,  he  may  recover  it  back  again  in  an  action  for 
money  had  and  received.  Farmer  v.  Arundell,  2  Bl.  Rep.  824.  The 
two  excepted  cases  are,  1st,  where  he  was  bound  in  conscience,  though 
not  in  law,  to  make  the  payment ;  2dly,  where  he  is  particeps  crim- 
inis ;  but  this  case  does  not  fall  within  eitlier  of  those  excep- 
tions.    *     *     * 

1 9  The  statement  of  facts  is  abridged. 

20  These  statutes  made  void  all  contracts  for  loans  by  British  subjects  se- 
cured by  bonds  on  foreign  ships  engaged  in  the  East  India  trade. 


Sec.  1)  THE   GENERAL   DOCTRINE  :    MISTAKE   OF   FACT  83 

Lord  Kenyon,  C.  J.  (stopping  Law,  contra).  It  has  been  said  that 
this  was  not  a  debt  which  the  plaintiffs  were  bound  in  conscience  to 
pay  to  the  defendants;  but  I  think  that  they  were  bound  both  in 
honour  and  conscience  to  refund  the  money  which  the  defendants  had 
advanced,  though  the  original  contract  were  contrary  to  a  positive  law ; 
for  this  is  not  a  penalty,  but  money  which  the  defendants  had  actually 
advanced ;  and  the  original  contract  was  not  malum  in  se,  but  malum 
prohibitum.  Though  the  security  on  which  this  money  was  borrowed 
was  void  by  the  statute,  I  do  not  know  but  that  an  action  for  money 
had  and  received  might  have  been  maintained  by  the  defendants  to 
recover  back  this  money :  the  cases  cited  relative  to  premiums  go  a 
great  way  to  shew  that;  but  the  ground  on  which  I  go  is  this,  that 
there  was  no  misrepresentation  or  any  improper  conduct  by  the  de- 
fendants to  extort  the  money  from  tlie  plaintiffs ;  but  the  plaintiffs, 
knowing  the  whole  transaction,  and  the  law  also,  as  they  were  bound 
to  know,  voluntarily  paid  it.  There  was  nothing  contrary  to  conscience 
in  the  defendants  receiving  the  money  which  they  had  advanced ;  the 
plaintiffs  therefore  are  not  intitled  either  in  law  or  in  equity  to  recover 
it  back  again.^^  This  is  not  like  a  case  which  I  remember  many  years 
ago,  where  an  action  was  brought  to  recover  the  excess  of  a  copy- 
hold fine :  there  it  was  held,  that  the  money  might  be  recovered  back 
in  an  action  for  money  had  and  received  against  the  steward,  because 
he  had  used  coercion  to  obtain  payment  of  the  excessive  fine ;  he 
would  not  deliver  the  title-deeds  without.  Nor  is  this  a  case  of  singu- 
lar hardship  against  the  executors ;  for  where  executors  pay  a  debt 
of  "an  inferior  nature,  though  conscientiously  and  without  any  view  to 
prefer  one  creditor  to  another,  the  loss  must  be  borne  by  them  in- 
dividually, if  the  assets  be  insufficient  to  pay  all  the  debts  of  a  higher 
nature.  Without  going  into  the  question  of  form,  upon  which  I  should 
be  sorry  to  have  the  case  decided,  I  am  clearly  of  opinion  tliat  on  the 
merits  the  plaintiffs  are  not  intitled  to  recover. 

BuLLDR,  J.  In  the  case  of  illegal  contracts,  one  party  cannot  re- 
cover against  the  other  on  the  contract  itself :  but  if  he  come  to  rescind 
the  contract,  he  may  recover  back  so  much  money  as  has  been  paid. 
This  was  established  in  Jaques  v.  Golightly,  and  in  Lowry  v.  Bour- 
dieu,  Dougl.  468  (3d  Edit.).  If  the  party  come  into  a  Court  of  Jus- 
tice to  enforce  an  illegal  contract,  two  answers  may  be  given  to  his 

21  "Tbis  kind  of  equitable  action,  to  recover  back  money,  wLicb  ougbt  not 
in  justice  to  be  kept,  is  very  beneficial  and  tberefioi'e  much  enc.ouraf,'cd.  It 
lies  only  for  money  which,  ex  aequo  et  bono,  the  defendant  ought  to  refund:  it 
does  not  lie  for  money  paid  by  the  plaintiff,  which  is  claimed  of  him  as  payable 
in  point  of  honor  and  honesty,  although  it  could  not  liave  been  recovered  from 
him  by  any  course  of  law;  as  in  payment  of  a  debt  barred  by  the  Statute  of 
Liimitations,  or  contracted  during  his  infancy,  or  to  the  extent  of  principal 
and  legal  interest  upon  an  usurious  contract,  or  for  money  fairly  lost  at  play ; 
because  in  all  these  cases,  the  defendant  may  retain  it  with  a  safe  conscience, 
although  by  positive  law  he  is  barred  from  recovering."  Per  Lord  Mansfield, 
C.  J.,  in  Moses  v.  Macferlan  (17G0)  2  Burr.  1005,  1012. 

See  also  Farmer  v.  Arundel  (1772)  2  Wm.  Bl.  824,  note,  page  203,  infra. 


84  BENEFITS   CONFERRED   BY   MISTAKE  (Cll.  2 

demand:  the  one,  that  he  must  draw  justice  from  a  pure  fountain; 
and  the  other,  that  potior  est  conditio  possidentis.  Such  would  have 
been  this  case  if  tlie  plaintiffs  had  not  paid  the  money,  and  an  action 
had  been  brought  on  the  contract :  but,  the  plaintiffs  having  paid  it, 
the  question  is,  whether  the  defendants  retain  the  money  against  con- 
science? I  think  they  do  not,  because  they  have  only  received  back 
the  money  which  they  had  before  advanced  to  the  plaintift''s  testator. 
I  also  think  that  the  point  of  form  is  against  the  plaintiffs :  they  should 
have  declared  in  their  own  right,  and  not  as  executors.  At  all  events, 
if  the  action  be  brought  by  the  executors,  all  of  them  should  have 
joined;  and  this  is  a  defect  in  the  plaintiffs'  title.  Where  indeed  sev- 
eral are  named  executors,  and  one  only  proves  tlie  will  and  acts,  that 
one  is  liable  to  an  action;  but  he  cannot  sue  alone,  until  tlie  others 
have  renounced. 

Postea  to  tlie  defendants.^' 


BUEIv  V.  BOUGHTON. 

(Supreme  Court  of  New  York.  1846.    2  Denio,  91.) 

Error  to  the  Onondaga  C.  P.  Buel  sued  Boughton  for  money  had 
and  received  to  his  use;  and  the  case  was  substantially  as  follows: 
One  Charlotte  Smith  held  a  bond  against  the  plaintiff  for  $2,650,  pay- 
able in  six  equal  annual  instalments,  with  annual  interest  from  April 
1,  1843.  James  H.  Fuller,  in  right  of  his  wife,  owned  and  had  an 
interest  in  tlie  bond  to  the  amount  of  $498.10.  On  the  1st  day  of 
April,  1843,  the  plaintiff  gave  James  H.  Fuller  his  negotiable  promis- 
sory note  for  said  sum  of  $498.10,  having  more  than  two  years  to 
run.  The  plaintiff  agreed  to  make  the  note  payable  with  interest ;  but 
interest  was  left  out  of  the  note  by  mistake  in  drawing  it.  On  the  day 
of  the  date  of  the  note  Charlotte  Smitli  indorsed  and  receipted  the 

22  In  Jackson  v.  City  of  Atlanta  (1878)  61  Ga.  228,  the  plaintiff  paid  taxes 
to  the  city  of  Atlanta,  relying  on  a  survey  which  determined  that  plaintiff's 
land  was  within  the  city  limits.  A  subsequent  survey  disclosed  the  fact  that 
plaintiffs  land  was  outside  of  the  city  limits.  Plaintiff  sued  to  recover  the 
taxes  so  paid.  The  court  denied  relief,  saying:  "The  plaintiff  paid  his  tax  to 
the  city  without  objection  or  protest  that  his  property  was  not  subject  to  taxa- 
tion by  the  city,  and  that  tax  having  been  paid  into  the  city  treasury,  and 
expended  for  the  common  benefit  and  protection  of  those  who  were  recognized 
as  being  within  the  limits  of  the  city,  including  the  plaintifC,  he  is  not  now  en- 
titled to  recover  it  back  from  the  city." 

In  Pensacola  &  Atlanta  Railroad  Co.  v.  Braxton  (1894)  34  Fla.  471,  16  South. 
317,  A.  presented  to  the  railroad  company  a  claim  for  damages  for  an  ox  killed 
by  a  train  of  the  railroad  company,  and  about  the  sajue  time  B.  presented  a 
similar  claim  for  killing  an  ox.  The  railroad,  intending  to  pay  B.'s  claim, 
gave  a  voucher  for  the  money  to  A.,  who  bore  the  same  name  as  B.  Held, 
that  A.,  having  received  and  cashed  this  voucher  in  good  faith,  believing  that 
it  was  given  him  in  payment  of  his  claim,  was  under  no  obligation  to  refund 
the  same,  the  court  saying :  "Under  these  circmnstances  we  do  not  think  that 
the  retention  of  tlie  money  by  him  necessarily  involved  any  smartings  of  good 
conscience." 

See  also  Dickey  County  v.  Hicks  (1905)  14  N.  D.  73,  103  N.  W.  423. 


Sec.  1)  THE   GENERAL  DOCTRINE  :    MISTAKE   OF   FACT  85 

amount  of  the  note  on  the  bond.  On  the  day  the  note  was  given,  James 
H.  Fuller  transferred  it  to  Almerin  Fuller,  who  indorsed  the  amount 
of  the  note  on  a  bond  which  he  held  against  James,  which  bond  was 
on  interest.  This  was  done  on  the  supposition  tliat  the  note  was  also 
on  interest.  About  twenty  days  afterwards  Almerin  Fuller  transferred 
the  note  to  the  defendant,  who  indorsed  the  amount  of  the  note,  and 
of  the  interest  which  was  supposed  to  have  then  accrued  upon  it,  on 
a  bond  which  he  held  against  Almerin  Fuller,  which  bond  was  on  in- 
terest. On  the  23d  of  May,  1845,  the  plaintiff  paid  the  note  to  the 
defendant,  and  by  mistake,  supposing  the  note  to  have  been  written 
with  interest,  paid  the  defendant  $71.20  for  interest  on  the  note,  and 
took  it  up.  The  plaintiff  brought  this  suit  to  recover  back  the  sum 
so  paid  by  mistake  for  interest.  The  defendant  set  up  the  other  facts 
which  have  been  mentioned  as  an  answer  to  the  action ;  and  the  court 
decided  in  his  favor.  A  verdict  and  judgment  having  passed  for  the 
defendant,  the  plaintiff  now. brings  error  on  a  bill  of  exceptions. 

Bronson,  C.  J.  This  is  a  remarkable  case.  The  plaintiff  first 
omitted,  by  mistake,  to  make  the  note  payable  with  interest,  as  he 
should  have  done ;  and  then,  by  another  mistake,  he  corrected  the  first 
error  by  paying  interest,  when  the  note  itself  imposed  no  such  obliga- 
tion. And  thus  by  two  blunders  the  parties  have  come  out  right  at 
last.  Or  at  least,  the  plaintiff  has  paid  no  more  than  he  ought  to  pay ; 
and  there  would  be  no  ground  for  an  action  to  recover  back  the  money 
paid  for  interest,  if  the  payment  had  been  made  to  James  H.  Fuller, 
the  payee  of  the  note,  against  whom  the  first  mistake  was  made.  One 
party  would  in  that  case  have  paid,  and  the  other  received  just  what 
in  justice  and  honesty  ought  to  be  paid  and  received. 

But  the  payment  was  not  made  to  James  H.  Fuller ;  and  this  leads 
me  to  notice  that  not  only  the  plaintiff  and  James  H.  Fuller  acted  from 
beginning  to  end  under  the  mistaken  supposition  that  the  note  was 
made  payable,  as  it  should  have  been,  with  interest ;  but  the  note  was 
twice  transferred,  and  both  Almerin  Fuller  and  the  defendant  took  it 
under  the  same  mistake  of  supposing  it  carried  interest.  Now  as 
against  the  plaintiff,  James  H.  Fuller  had  an  equitable  claim  to  have 
the  mistake  corrected,  so  as  to  give  him  interest  on  the  debt.  Then 
Almerin,  having  taken  and  paid  James  for  the  note  as  though  it  were 
on  interest,  had  an  equitable  claim  to  have  tlie  mistake  corrected,  so 
as  to  give  the  interest  to  him.  The  same  thing  is  true  as  between  the 
defendant  and  Almerin.  The  defendant  took  and  paid  him  for  the 
note  as  though  it  carried  interest.  And  thus  by  a  series  of  mistakes 
the  equitable  claim  to  interest  which  was  originally  in  James,  passed 
from  him  to  Almerin,  and  from  Almerin  to  the  defendant ;  so  tliat, 
at  the  time  the  money  was  paid,  the  defendant  was  the  person  who 
was  equitably  entitled  to  receive  it.  He  could  not  have  sued  the  plain- 
tiff for  it  at  law  in  his  own  name ;  but  in  a  court  of  equity  the  money 
would  have  been  awarded  to  him,  and  not  to  James  H.  Fuller.    It  has 


86  BENEFITS   CONFERRED   BY   MISTAKE  (Cll.  2 

come  into  the  defendant's  hands  without  suit,  and  from  the  person 
who  ought  to  pay  it ;  and  I  see  no  sufficient  reason  for  requiring  it 
to  be  refunded.  Whether  the  defendant  could  sue  at  law  in  his 
own  name  to  recover  the  money ;  or  whether,  having  fairly  got  it, 
this  action  for  money  had  and  received  to  the  plaintiff's  use  can  be 
maintained,  are  very  different  questions. 

This  is  an  equitable  action,  which  may  be  defended  upon  the  same 
equitable  principles  as  those  upon  which  it  is  maintained.  As  a  gen- 
eral rule,  the  question  is,  to  which  party  ex  aequo  et  bono  does  the 
money  belong?  And  in  this  case,  I  think  it  belongs  to  the  defendant, 
who  has  got  it.  Let  us  suppose  that  the  plaintiff  had  refused  to  pay 
the  interest  to  the  defendant;  but,  being  liable  to  pay  it  to  some  one, 
he  had  paid  it,  either  voluntarily  or  by  compulsion,  to  James  H.  Fuller, 
between  whom  and  the  plaintiff  the  original  mistake  was  made.  James 
might  then  have  been  compelled  to  pay  the  money  to  Almerin ;  and 
Almerin  to  the  defendant.  Or  if  we  begin  at  the  other  end,  the  de- 
fendant might  have  fallen  back  upon  Almerin,  and  compelled  him  to 
correct  the  mistake  by  paying  the  interest;  Almerin  could  have  gone 
back  in  like  manner  upon  James ;  and  James  upon  the  plaintiff.  And 
so  in  any  way  of  viewing  the  matter,  the  plaintiff  was  bound  in  equity 
and  good  conscience  to  pay  th'C  money;  and  the  defendant  was  the 
man  who  in  equity  and  good  conscience  was  entitled  to  receive  it.  He 
has  got  it;  and  to  allow  the  plaintiff  to  recover  it  back,  would  be  to 
make  this  the  first  in  a  circuit  of  four  actions  which  would  end  in 
leaving  the  money  just  where  it  was  at  the  beginning. 

It  is  said  that  although  the  plaintiff  has  paid  tlie  interest  to  the  de- 
fendant, he  may  be  compelled  to  pay  it  again  in  an  action  on  his  bond 
to  Mrs.  Smith.  But  I  think  not.  It  fully  appears  that  the  principal 
sum  of  money  for  which  the  note  was  given  belonged  to  James  H. 
Fuller ;  and  of  course  he  was  entitled  to  the  interest  which  should 
afterwards  accrue  on  that  sum.  If  the  indorsement  made  on  the  plain- 
tiff's bond  would  not  of  itself  preclude  Mrs.  Smith  from  recovering 
the  interest  in  question,  it  would  clearly  be  enough  to  show  in  addi- 
tion that  the  plaintiff  had  corrected  the  error  by  paying  the  interest. 
But  if  the  plaintiff'  should  succeed  in  recalling  the  money,  then  un- 
doubtedly Mrs.  Smith,  on  proving  the  mistake  in  giving  the  note,  and 
that  the  plaintiff  had  not  corrected  it,  might  recover  this  interest  for 
the  benefit  of  James  H.  Fuller.  But  by  leaving  the  money  where  it 
is,  the  whole  series  of  mistakes  will  be  corrected,  and  all  parties,  unless 
it  be  the  plaintiff,  will  be  satisfied. 

Judgment  affirmed.-^ 

23  In  Jackson  v.  McKnight  (1879)  17  Hun,  2,  the  plaintiff  by  mistake  made 
an  overpayment  of  interest  on  a  mortgage,  the  principal  amount  thereof  being 
at  that  time  overdue.  The  plaintiff  sued  to  collect  the  amount  of  such  over- 
payment. The  court,  in  reversing  a  judgment  for  the  plaintiff  and  ordering 
a  new  trial,  said  :  "The  action  to  recover  money  paid  by  mistake  is  sustained, 
because  otherwise  the  party  would  suffer  an  unjust  loss.     It  should  not  be 


Sec.  1)  THE   GENERAL   DOCTRINE  :    MISTAKE   OF   FACT  87 


WOODRUFF  V.  CLAFLIN  CO. 

(Court  of  Appeals  of  New  York,  1910.     198  N.  Y.  470,  91  N.  E.  1103,  28  L.  R.  A, 
[N.  S.]  440,  19  Ann.  Cas.  791.) 

Appeal  from  a  judgment  of  the  Appellate  Division  of  the  Supreme 
Court  in  the  fourth  judicial  department,  affirming  a  judgment  in  favor 
of  plaintiff  entered  upon  a  verdict  directed  by  the  court. 

WiLLARD  Bartlett,  J.-*  Jason  G.  Cooke,  who  died  at  Potsdam.- 
N.  Y.,  on  December  23,  1899,  was  indebted  to  the  defendant  in  the  sum 
of  $725.95.  His  widow,  the  plaintiff,  became  his  administratrix  on 
January  2,  1900.  The  defendant  pressed  for  payment  of  its  claim, 
threatening  to  sue  if  it  were  not  speedily  paid,  whereupon  the  admin- 
istratrix, believing  the  estate  to  be  solvent,  compromised  it  by  paying 
$700  in  the  month  of  May,  1900.  Upon  her  subsequent  accounting  in 
the  Surrogate's  Court  it  turned  out  that  the  estate  had  been  from  the 
outset  insolvent  and  was  really  capable  of  paying  only  a  dividend  of 
71. Oi  per  cent,  upon  its  indebtedness.  Such  a  dividend  would  have 
given  the  H.  B.  Claflin  Company  $178.48  less  than  it  received  from  the 
administratrix  in  discharge  of  its  claim,  and  she  brought  the  present 
suit  to  recover  that  amount  with  interest.  As  evidence  of  the  insol- 
•vency  of  the  estate  and  its  extent,  she  was  allowed  to  introduce,  over 
the  defendant's  objection  and  exception,  a  decree  of  the  Surrogate's 
Court  of  St.  Lawrence  county  upon  her  accounting,  to  which  it  is 
conceded  "the  defendant  was  not  a  party,  and  a  second  decree  of  the 
same  court  purporting  to  amend  the  first,  made  in  a  proceeding  which 
the  defendant  was  cited  to  attend.  The  competency  of  this  proof  will 
be  considered  presently.  The  trial  court  directed  a  verdict  for  the 
plaintiff,  and  the  judgment  thereon  has  been  affirmed  by  the  Appellate 
Division. 

We  have  no  statute  in  New  York  giving  the  personal  representative 
of  an  insolvent  decedent  a  right  of  action  in  such  a  case  as  this ;  and 
the  first  question  presented  for  our  determination  is  whether  an  action 
of  this  character  can  be  maintained  in  the  absence  of  statutory  authori- 
ty therefor.  The  only  New  York  case  referring  to  the  question,  to 
which  our  attention  has  been  called  by  counsel,  is  Gulke  v.  Uhlig,  55 
How,  Prac.  434,  which  was  decided  by  a  General  Term  of  the  New 
York  Court  of  Common  Pleas,  consisting  of  Chief  Justice  Charles  P. 
Daly  and  Judges  Van  Hoesen  and  Joseph  F.  Daly.  Two  opinions  were 
written,  one  by  Judge  Van  Hoesen  and  the  other  by  Judge  Joseph  F. 
Daly.  It  does  not  appear  with  which  of  these  the  Chief  Justice  concur- 
red. Judge  Van  Hoesen  distinctly  assumed  that  an  administrator  could 
recover  money  which  he  had  overpaid  to  creditors  in  confidence  in  the 

extended  to  cases  where  the  relief  is  not  necessary.  It  is  not  necessary  in  the 
present  case,  because  the  plaintiff  can  protect  himself  whenever  he  is  sued  on 
the  bond  ap-l  mortgage." 

24  Portions  of  the  opinion  are  omitted. 


88  BENEFITS  CONFERRED   BY  MISTAKE  (Ch.  2 

ultimate  solvency  of  the  estate,  but  insisted  that  the  suit  must  be 
brought  in  equity  and  not  at  law ;  while  Judge  Joseph  F.  Daly  avowed 
his  inability  to  perceive  any  good  reason  for  denying  the  administratrix 
relief  in  an  action  at  law,  if  she  made  out  a  case  which  would  entitle 
her  to  recover  formerly  in  equity.  The  case  involved  other  issues, 
however,  and  it  is  impossible  to  ascertain  from  the  report  which  of 
these  conflicting  views  received  the  sanction  of  a  majority  of  the  court. 
The  decisions  in  other  states  are  conflicting.  The  doctrine  which  is 
supported  by  the  weight  of  judicial  authority,  and  which,  it  seems  to 
me,  we  ought  to  sanction,  may  be  briefly  stated.  In  the  case  of  the 
death  of  an  insolvent  debtor,  the  law  contemplates  equality  in  the  dis- 
tribution of  the  proceeds  of  his  estate  among  his  creditors.  A  creditor 
who  seeks  more  than  his  pro  rata  share  of  the  debtor's  property  under 
such  circumstances  seeks  that  which  does  not  belong  to  him,  and  makes 
the  other  creditors  poor  in  proportion.  To  insist  upon  full  payment 
from  an  insolvent  estate  is  dishonest,  if  the  party  thus  insisting  is 
aware  of  the  insolvency.  Hence,  whether  the  overpaid  creditor  shares 
the  erroneous  belief  of  the  administrator  that  the  estate  is  solvent,  or 
is  acquainted  with  its  true  condition,  he  is  equally  obligated  to  return 
the  surplus  he  has  received  over  the  dividend  to  which  he  was  entitled 
when  it  has  become  judicially  ascertained  that  the  estate  is  not  large 
enough  to  pay  all  the  debts  in  full ;  for  in  tlie  first  case  both  parties  act 
under  a  mutual  mistake  of  fact,  and  in  tlie  second  case  there  is  a 
wrongful  intent  on  one  side  and  a  mistake  on  the  other.  The  creditor 
who  has  received  the  excess  has  no  right  to  retain  it  in  equity  and  good 
conscience ;  and  the  personal  representative  who  has  innocently  paid 
such  excess  may  maintain  an  action  to  recover  it,  if  he  moves  season- 
ably after  the  ascertainment  of  the  insolvency,  and  has  done  nothing 
which  ought  to  constitute  an  estoppel  in  favor  of  the  overpaid  credi- 

*Qj.  2  5         *         *         * 

Without  continuing  the  discussion  of  the  authorities  any  further,  I 
am  of  the  opinion,  as  already  intimated,  that  the  plaintiff  has  a  right 
of  action  upon  the  facts  set  out  in  her  complaint.  It  does  not  follow, 
however,  that  she  has  established  her  alleged  cause  of  action  by  compe- 
tent proof.  It  was  essential  for  her  to  show  that  the  estate  was  in- 
solvent and  the  extent  of  its  insolvency.  The  adjudication  to  the  effect 
that  it  could  pay  creditors  only  74.01  per  cent,  by  the  Surrogate's  Court 
of  St.  Lawrence  county  in  the  first  decree  which  she  put  in  evidence 
was  not  binding  upon  the  defendant  corporation,  since  it  was  not  made 
a  party  to  the  proceeding  in  which  that  decree  was  entered.  *  *  * 
There  was  no  other  sufiicient  proof  of  those  facts,  and  the  error  in 
receiving  this  decree,  therefore,  requires  a  reversal  of  the  judgment. 

The  administatrix  carried  on  the  intestate's  business  for  some  time 
at  a  loss,  and  the  circumstances  under  which  she  did  this  are  relied 
upon  by  the  appellant  as  insuperable  obstacles  to  a  recovery  in  her  be- 

i 

25  The  court  here  discussed  the  authorities. 


Sec.  1)  THE   GENERAL  DOCTRINE  *.    MISTAKE  OF  FACT  89 

half,  as  well  as  the  point  that  a  voluntary  payment  is  not  recoverable. 
The  defense  of  voluntary  payment  is  not  available  where  the  payment 
was  the  result  of  mistake;  and  it  does  not  appear  that  the  conduct  of 
the  business  by  the  administratrix,  after  her  settlement  with  the  defend- 
ant, in  any  manner  affected  their  respective  rights  or  relations. 

The  conclusion  which  I  have  reached  is  that,  while  an  action  of  this 
character  is  maintainable,  some  of  the  most  material  evidence  oft'ered 
and  received  in  behalf  of  the  plaintiff  was  inadmissible.  The  defend- 
ant is,  therefore,  entitled  to  a  reversal  of  the  judgment  and  a  new  trial, 
costs  to  abide  event. 

Judgment  reversed,  etc.^" 


(B)  Negligence 
KELLY  v.  SOLARI. 

(Court  of  Exchequer,  1841.    9  Mees.  &  W.  53.) 

Assumpsit  for  money  paid,  money  had  and  received,  and  on  account 
stated.  Plea,  non  assumpsit.  At  the  trial  before  Lord  Abinger,  C.  B., 
at  the  London  sittings  after  Trinity  term,  it  appeared  that  this  was  an 
action  brought  by  the  plaintiff,  as  one  of  the  directors  of  the  Argus 
Life  Assurance  Company,  to  recover  from  the  defendant,  Madame 
Solari,  the  sum  of  £197.  10s.  alleged  to  have  been  paid  to  her  by  the 
company  under  a  mistake  of  fact,  under  the  following  circumstances. 

Mr.  Angelo  Solari,  the  late  husband  of  the  defendant,  in  the  year 
1836,  effected  a  policy  on  his  life  with  the  Argus  Assurance  Company 
for  £200.  He  died  on  the  18th  of  October,  1840,  leaving  the  defendant 
his  executrix,  not  having  (by  mistake)  paid  the  quarterly  premium  on 
the  policy,  which  became  due  on  the  3d  of  September  preceding.  In 
November,  the  actuary  of  the  office  informed  two  of  the  directors,  Mr. 
Bates  and  Mr.  Clift,  that  the  policy  had  lapsed  by  reason  of  the  non- 
payment of  the  premium,  and  Mr.  Clift  thereupon  wrote  on  the  policy, 
in  pencil,  the  word  "lapsed."  On  the  6th  of  February,  1841,  the  de- 
fendant proved  her  husband's  will;  and  on  the  13th,  applied  at  the 
Argus  office  for  the  payment  of  the  sum  of  £1000.,  secured  upon  the 

26  Contra:  Carson  v.  McFarland  (1S2S)  2  Rawle  (Pa.)  118,  19  Am.  Dec.  627, 
In  -R-hich  case  the  court  said :  "In  this  case  the  administrator  paid  money 
justly  due  and  paid  it  witliin  the  year  allowed  by  law  to  ascertain  the  situa- 
tion of  the  estate.  The  assets  were,  or  ought  to  have  been,  better  known  to 
the  administrator  than  anybody  else.  No  accidental  failure  of  the  fund  oc- 
curred to  any  material  extent;  the  defendant  has  no  money  to  which  in  hon- 
esty and  conscience  he  is  not  entitled,  as  against  the  estate  of  this  deceased. 
The  hai-dship  on  the  plaintiff  may  be  great.  The  hardship  on  the  defendant, 
if  called  on  to  refund,  would  not  be  small ;  and  the  confusion,  inconvenience 
and  general  uncertainty  which  would  follow  from  a  decision  that  an  honest 
creditor  who  had  gotten  an  honest  debt  was  liable  to  be  sued  and  compelled 
to  repay  would  be  so  great — would  make  the  settlement  of  an  estate  so  un- 
certain and  so  interminable,  that  we  think  the  ]ilaintifl;  ought  not  to  recover." 

The  authorities  are  collected  in  19  Ann.  Cas.  791. 


90  BENEFITS  CONFERRED  BY   MISTAKE  (Ch.  2 

policy  in  question  and  two  others.  Messrs.  Bates  and  Clift,  and  a 
third  director,  accordingly  drew  a  cheque  for  £987.  10s.,  which  they 
handed  to  the  defendant's  agent,  the  discount  being  deducted  in  con- 
sideration of  the  payment  being  made  three  months  earlier  than  by 
the  rules  of  the  office  it  was  payable.  Messrs.  Bates  and  Clift  stated 
in  evidence,  that  they  had,  at  the  time  of  so  paying  the  money,  entirely 
forgotten  that  the  policy  in  question  had  lapsed.  Under  these  cir- 
cumstances, the  Lord  Chief  Baron  expressed  his  opinion,  that  if  tlie 
directors  had  had  knowledge,  or  the  means  of  knowledge,  of  the  policy 
having  lapsed  the  plaintiff  could  not  recover,  and  that  their  afterwards 
forgetting  it  would  make  no  difference ;  and  he  accordingly  directed  a 
nonsuit,  reserving  leave  to  the  plaintiff  to  move  to  enter  a  verdict  for 
him  for  the  amount  claimed. 

Thesiger  obtained  a  rule  nisi. 

Lord  Abinger,  C.  B.  I  think  the  defendant  ought  to  have  had  the 
opportunity  of  taking  the  opinion  of  the  jury  on  the  question  whether 
in  reality  the  directors  had  a  knowledge  of  the  facts,  and  therefore  that 
there  should  be  a  new  trial,  and  not  a  verdict  for  the  plaintiff ;  although 
I  am  now  prepared  to  say  that  I  laid  down  the  rule  too  broadly  at  the 
trial,  as  to  the  effect  of  their  having  had  means  of  knowledge.  That  is 
a  very  vague  expression,  and  it  is  difficult  to  say  with  precision  what  it 
amounts  to ;  for  example,  it  may  be  that  the  party  may  have  the  means 
of  knowledge  on  a  particular  subject,  only  by  sending  to  and  obtaining 
information  from  a  correspondent  abroad.  In  the  case  of  Bilbie  v. 
Lumley,  the  argument  as  to  the  party  having  means  of  knowledge  was 
used  by  counsel,  and  adopted  by  some  of  the  judges;  but  that  was  a 
peculiar  case,  and  there  can  be  no  question  that  if  the  point  had  been 
left  to  the  jury,  they  would  have  found  that  the  plaintiff  had  actual 
knowledge.  The  safest  rule,  however  is,  that  if  the  party  makes  the 
payment  with  full  knowledge  of  the  facts,  although  under  ignorance  of 
the  law,  there  being  no  fraud  on  the  other  side,  he  cannot  recover  it 
back  again.  There  may  also  be  cases  in  which,  although  he  might  by 
investigation  learn  the  state  of  facts  more  accurately,  he  declines  to 
do  so,  and  chooses  to  pay  the  money  notwithstanding;  in  that  case 
tliere  can  be  no  doubt  that  he  is  equally  bound.  Then  there  is  a  third 
case,  and  the  most  difficult  one, — where  the  party  had  once  a  full 
knowledge  of  the  facts,  but  has  since  forgotten  them.  I  certainly  laid 
down  the  rule  too  widely  to  the  jury,  when  I  told  them  that  if  the  di- 
rectors once  knew  the  facts  they  must  be  taken  still  to  know  them,  and 
could  not  recover  by  saying  that  they  had  since  forgotten  them.  I 
think  the  knowledge  of  the  facts  which  disentitles  the  party  from  re- 
covering, must  mean  a  knowledge  existing  in  the  mind  at  the  time  of 
payment.  I  have  little  doubt  in  this  case  that  the  directors  had  for- 
gotten the  fact,  otherwise  I  do  not  believe  they  would  have  brought  the 
action;  but  as  Mr.  Piatt  certainly  has  a  right  to  have  that  question 
su])mitted  to  the  jury,  there  must  be  a  new  trial. 


Sec.  1)  THE   GENERAL   DOCTRINE  :    MISTAKE  OF   FACT  91 

Parke,  B.  I  entirely  agree  in  the  opinion  just  pronounced  by  my 
Lord  Chief  Baron,  that  there  ought  to  be  a  new  trial.  I  think  that 
where  money  is  paid  to  another  under  the  influence  of  a  mistake,  that 
is,  upon  the  supposition  that  a  specific  fact  is  true,  which  would  entitle 
the  other  to  the  money,  but  which  fact  is  untrue,  and  the  money  would 
not  have  been  paid  if  it  had  been  known  to  the  payer  that  the  fact  was 
untrue,  an  action  will  lie  to  recover  it  back,  and  it  is  against  conscience 
to  retain  it ;  though  a  demand  may  be  necessary  in  those  cases  in  which 
the  party  receiving  may  have  been  ignorant  of  the  mistake.  The  posi- 
tion that  a  person  so  paying  is  precluded  from  recovering  by  laches,  in 
not  availing  himself  of  the  means  of  knowledge  in  his  power,  seems, 
from  the  cases  cited,  to  have  been  founded  on  the  dictum  of  Mr.  Jus- 
tice Bayley,  in  the  case  of  Milnes  v.  Duncan  [9  B.  &  C.  671]  ;  and  with 
all  respect  to  that  authority,  I  do  not  think  it  can  be  sustained  in  point 
of  law.  If,  indeed,  the  money  is  intentionally  paid,  without  reference 
to  the  truth  or  falsehood  of  the  fact,  the  plaintiff  meaning  to  waive  all 
inquiry  into  it,  and  that  tlie  person  receiving  shall  have  the  money  at  all 
events,  whether  the  fact  be  true  or  false,  the  latter  is  certainly  entitled 
to  retain  it;  but  if  it  is  paid  under  the  impression  of  the  truth  of  a  fact 
which  is  untrue,  it  may,  generally  speaking,  be  recovered  back,  how- 
ever careless  tlie  party  paying  may  have  been,  in  omitting  to  use  due 
diligence  to  inquire  into  the  fact.  In  such  a  case  the  receiver  was  not 
entitled  to  it,  nor  intended  to  have  it. 

GuRNEY,  B.,  concurred. 

RoLFE,  B.  I  am  of  the  same  opinion.  With  respect  to  the  argu- 
ment, that  money  cannot  be  recovered  back  except  where  it  is  uncon- 
scientious to  retain  it,  it  seems  to  me,  that  wherever  it  is  paid  under  a 
mistake  of  fact,  and  the  party  would  not  have  paid  it  if  the  fact  had 
been  known  to  him,  it  cannot  be  otherwise  than  unconscientious  to  re- 
tain it.  But  I  agree  that  Mr.  Piatt  has  a  right  to  go  to  the  jury  again, 
upon  two  grounds:  first,  that  the  jury  may  possibly  find  that  the  di- 
rectors had  not  in  truth  forgotten  the  fact ;  and  secondly,  they  may  also 
come  to  the  conclusion,  that  they  had  determined  that  they  would  not 
expose  the  office  to  unpopularity,  and  would  therefore  pay  the  money 
at  all  events :  in  which  case  I  quite  agree  that  tliey  could  not  recover 
It  back. 

Rule  absolute  for  a  new  trial.^^ 

27  "In  my  judgment  when  the  plaintiff  is  seelving  relief,  not  on  a  contract, 
but  on  the  footing  of  a  mistake  of  fact,  the  mistiil<e  is  not  the  less  a  icround 
for  relief  because  he  had  the  means  of  knowledge."  Per  Fry,  J.,  in  Willmott 
V.  Barber  (1880)  15  Ch,  D.  96.  106. 


92  BENEFITS  CONFERRED  BY   MISTAKE  (Ch.  2 

APPLETON  BANK  v.  McGILVRAY. 
(Supreme  Judicial  Court  of  Massachusetts,  1855.     4  Gray,  518,  64  Am.  Dec.  92.) 

Action  of  contract  to  recover  $370.42,  received  by  the  defendants  to 
the  plaintiffs'  use. 

At  the  trial  before  Bigelow,  J.,  the  plaintiffs,  to  prove  their  case, 
called  a  witness,  who  testified  that  he  had  been  an  expressman  between 
Boston  and  Lowell  for  eleven  years,  and  that  was  his  whole  business ; 
that  sometime  previous  to  April  7,  1854,  he  received  for  collection  from 
the  defendants,  a  partnership  doing  business  in  Boston,  two  notes  of  J. 
C.  Hildreth  &  Co.,  a  partnership  doing  business  in  Lowell,  for  $370.42 
each,  the  one  due  on  the  7th  and  tlie  other  on  the  13th  of  April,  and 
both  payable  to  the  defendants,  and  indorsed  in  blank  by  them ;  and 
was  directed  to  collect  them  in  the  ordinary  way,  without  any  direc- 
tions as  to  protesting  them,  and  gave  his  receipt  therefor ;  that  it  was 
sometimes  his  custom  to  collect  notes  by  depositing  them  in  a  bank, 
and  sometimes  by  calling  on  the  parties  personally,  though  he  did  not 
communicate  to  the  defendants  how  he  was  going  to  collect  their 
notes,  and  did  not  know  that  they  knew  he  ever  collected  notes  de- 
livered him  through  the  banks;  that  before  the  7th  of  April  he  de- 
posited the  notes  with  the  plaintiffs,  a  bank  in  Lowell,  for  collection ; 
that  on  the  8th  of  April  he  called  on  the  plaintiffs,  and  asked  if  the 
note  due  the  day  before  had  been  paid,  and  was  informed  by  a  clerk 
of  the  plaintiffs  that  it  had  been,  and  received  the  amount  of  it  from 
the  plaintiffs  ;  that  the  plaintiffs  received  no  compensation  for  collecting 
these  notes,  and  he  did  not  communicate  to  the  plaintiffs,  when  he  left 
the  notes,  to  whom  tliey  belonged ;  that  he  took  the  money  so  paid,  and 
the  same  day  paid  it  to  the  defendants,  but  did  not  remember  telling  the 
defendants,  when  he  paid  them  the  money,  that  he  collected  it  tlirough 
the  plaintiffs  or  any  bank ;  and  the  defendants  paid  him  for  his  services. 

The  plaintiffs  also  proved  that,  by  reason  of  the  notes  not  having 
been  placed  on  their  regular  file,  they  had  not  notified  Hildreth  & 
Co.,  the  promisors,  of  the  maturity  of  the  first  note,  and  their  clerk 
was  led  into  the  mistake  of  supposing  that  it  had  been  paid,  when  in 
fact  it  had  not,  and  has  never  been  paid  to  any  one;  that  on  the  10th 
of  April,  as  soon  as  the  mistake  was  discovered,  tlie  plaintiffs  de- 
manded payment  of  the  promisors,  who  refused,  and  on  the  11th  of 
April  these  facts  were  communicated  to  the  defendants,  and  the  note 
tendered  them,  and  the  money  they  had  received  from  the  carrier  de- 
manded by  the  plaintiffs,  and  refused  by  them. 

It  was  also  proved  that  the  promisors  had  not  funds  to  pay  the  note 
when  due  on  the  7th  of  April,  and  had  determined  not  to  pay  it,  and 
would  not  have  paid  it,  if  presented ;  that  after  the  7th  they  paid  no 
business  debts,  (this  being  one,)  and  no  change  took  place  in  their 
circumstances ;  but  they  continued  in  possession  of  a  stock  of  dr, 
goods  until  the  17th  of  April,  when  tliey  were  sued  by  the  defendants 


Sec.  1)  THE   GENERAL   DOCTRINE  :     MISTAKE   OF   FACT  93 

on  the  note  which  fell  due  on  the  13th  of  April,  and  an  attachment  of 
their  stock  made,  which  was  afterwards  dissolved  by  an  assignment  of 
their  estate  under  the  insolvent  laws ;  and  the  second  note  was  never 
paid,  but  was  proved  in  insolvency  against  their  estate. 

Upon  these  facts,  the  defendants  contended  that  there  was  no  such 
privity  or  agency  proved  to  have  existed  between  the  parties,  as  to 
enable  the  plaintiffs  to  maintain  this  action ;  and  that,  as  the  mistake 
arose  from  the  negligence  of  the  plaintiffs,  they  had  no  remedy  against 
the  defendants.  A  verdict  was  taken  by  consent  for  the  plaintiffs,  sub- 
ject to  the  opinion  of  the  full  court. 

BiGELOW,  J. 2*  The  objection  that  this  action  cannot  be  maintained, 
for  want  of  privity  between  the  parties  to  the  suit,  is  not  sustained  by 
the  proof.     *     *     * 

The  privity  necessary  to  make  the  parties  liable  to  each  other  is 
created  by  the  authority  to  employ  a  sub-agent,  which  is  fairly  to  be 
inferred  from  the  evidence. 

This  view  of  the  legal  relation  of  the  parties  is  decisive  of  the  re- 
maining objection  to  the  plaintiffs'  right  of  recovery  in  this  action. 
The  money  was  clearly  paid  over  to  the  defendants  under  a  mistake 
of  fact,  and,  upon  familiar  principles,  an  action  can  be  maintained  to 
recover  it  back.  It  is  no  answer  to  the  plaintiffs'  claim,  that  the  mis- 
take arose  from  the  negligence  of  the  plaintiffs.  The  ground  on  which 
the  rule  rests  is,  that  money,  paid  through  misapprehension  of  facts, 
in  equity  and  good  conscience  belongs  to  the  party  who  paid  it;  and 
cannot  be  justly  retained  by  the  party  receiving  it,  consistently  with  a 
true  application  of  the  real  facts  to  the  legal  rights  of  the  parties.  2 
Saund.  PI.  &  Ev.  (2d  Ed.)  394.  The  cause  of  the  mistake  therefore  is 
wholly  immaterial.  The  money  is  none  the  less  due  to  the  plaintiffs, 
because  their  negligence  caused  the  mistake  under  which  the  payment 
was  made.  The  case  would  have  been  different,  if  it  had  appeared  that 
the  defendants  had  suffered  any  damage,  or  changed  their  situation 
as  respects  their  debtor,  by  reason  of  the  laches  of  the  plaintiffs.  But 
the  facts  show  that  their  rights  were  wholly  unaffected  by  the  mistake 
under  which  the  payment  was  made.  Nothing  occurred  subsequently 
to  the  payment,  which  renders  it  unconscientious  to  recover  the  money 
back.  It  is  therefore  clear  that  the  defendants  have  money  belonging 
to  the  plaintiffs  in  their  hands,  to  which  they  show  no  legal  or  equi- 
table title.  Kelly  v.  Solari,  9  M.  &  W.  54;  Bell  v.  Gardiner,  4  Man.  & 
Gr.  11 ;  2  Smith's  Lead  Cas.  243.  244. 

Judgment  on  the  verdict,^* 

28  A  portion  of  the  opinion  is  omitted. 

2»  "It  is  ttie  fact  that  one  by  mistake  unintentionally  pays  money  to  another 
\o  which  the  latter  is  not  entitled  from  the  former,  which  sives  the  rif,'ht  of 
action,  and  the  fact  that  the  mistake  occurs  throui^h  nosliseuce  does  not  give 
the  payee  any  better  or  the  payt^r  any  worse  title  to  the  money."  Per  Earl, 
C,  In  Lawrence  v.  American  National  Bank  (1873)  54  N.  Y.  433,  436. 


94  BENEFITS  CONFERRED  BY   MISTAKE  (Ch.  2 

ASH  V.  McLELLAN. 

(Supreme  Court  of  Jlaine,  1905.     101  Me.  17,  G2  Atl.  59S!) 

On  exceptions  by  plaintiff. 

Money  had  and  received  to  recover  back  money  paid  by  the  plain- 
tiffs to  the  defendant. 

Strout,  J.^"  Carter  recovered  a  judgment  against  George  R.  Rob- 
inson. This  judgment  was  duly  assigned  to  the  defendant  McLellan, 
who  became  its  legal  owner.  McLellan  sued  the  judgment,  and  recov- 
ered a  new  judgment  in  Carter's  name  for  $145.82  debt  and  $9.93 
costs  at  the  April  term,  Supreme  Judicial  Court,  1896.  Upon  an  exe- 
cution upon  this  judgment,  dated  August  30,  1902,  McLellan  caused 
the  debtor  Robinson  to  be  arrested,  and  the  debtor  gave  bond  to  take 
the  poor  debtor's  oath  as  provided  by  statute.  The  plaintiffs  were 
sureties  on  that  bond.  Upon  notice  to  Carter,  Robinson  did  in  fact 
take  the  poor  debtor's  oath  on  January  24,  1903,  and  thus  performed 
the  condition  of  his  bond,  but  McLellan  had  no  knowledge  of  this  fact 
from  any  source.  After  expiration  of  the  time  limited  in  Robinson's 
bond,  ]\IcLellan,  believing  the  condition  had  not  been  performed  and 
that  the  sureties  were  liable,  called  upon  them  for  payment.  Robinson 
at  that  time  was  in  the  employment  of  the  plaintiffs,  and  they  saw 
him  daily,  and  were  indebted  to  him  to  some  amount,  which  at  the  end 
of  the  season  amounted  to  something  over  $200. 

Upon  the  call  for  payment  by  McLellan  of  the  plaintiffs,  Mr.  Ash, 
one  of  the  sureties,  and  one  of  the  plaintiffs,  wrote  him  asking  for  his 
best  terms,  to  which  McLellan  replied  that  he  "would  send  the  execu- 
tion and  bond  fully  discharged  for  $190,  the  sureties  paying  the  dep- 
uty sheriff."  This  was  less  than  the  amount  due.  Thereupon  plain- 
tiffs sent  McLellan  check  for  $190,  and  received  back  the  bond  and 
execution  against  Robinson  fully  discharged. 

September  29,  1903,  the  plaintiffs  demanded  of  McLellan  the  re- 
turn of  the  money  paid  him,  but  made  no  offer  to  return  the  bond 
and  execution  at  any  time  until  after  the  hearing  of  this  suit  to  re- 
cover the  money.  They  obtained  what  they  paid  for,  not  only  their 
discharge  from  the  bond  but  the  discharge  of  the  judgment  against 
Robinson.  If  for  any  cause  they  had  the  right  to  rescind  or  recover 
back  the  money  paid,  it  was  indispensable  that  they  should  have  re- 
turned or  offered  to  return  the  bond  and  execution  before  suit  brought. 
But  instead  of  that  they  retained  the  discharged  execution  and  sued 
to  recover  the  money  paid  therefor.  Failing  to  do  this,  this  action 
cannot  be  maintained. 

But,  waiving  this  technical  defense,  and  treating  the  case  as  one  of 
a  voluntary  payment  upon  an  honest  claim  of  right  by  McLellan,  though 
in  fact  unfounded,  it  would  be  expected  that  when  the  plaintiffs  were 

30  The  statement  of  facts  is  omitted. 


Sec.  1)  THE   GENERAL   DOCTRINE  :     MISTAKE   OF   FACT  95 

asked  to  respond  for  the  default  of  Robinson,  the  principal  in  a  bond 
on  which  they  were  sureties,  they  would  have  called  his  attention  to  it, 
and  asked  him  to  make  payment,  or  at  least  for  authority  to  apply  to 
that  purpose  the  amount  in  their  hands  due  to  him,  but  instead  of  this 
the  case  finds  that  "neither  Mr.  Ash  nor  Mr.  Marcyes  made  any 
inquiry  of  Mr.  Robinson  about  the  matter,  and  sent  the  check  without 
consulting  him  and  without  his  knowledge,  fearing  he  would  leave  if 
told  of  the  matter,  and  they  desired  to  have  his  wages  accumulate  to 
that  amount."  The  payment  was  in  no  sense  compulsory.  Plaintifi's 
knew  all  the  facts  that  McLellan  knew,  and  had  excellent  opportunity 
to'  learn  that  Robinson  had  taken  the  oath  provided  for  in  the  con- 
dition of  his  bond.  They  intentionally  refrained  from  consulting  him, 
though  he  was  in  their  employ  and  they  saw  him  daily,  for  the  pur- 
pose "to  have  his  wages  accumulate"  to  the  amount.  Both  parties  be- 
lieved there  was  a  legal  liability  of  plaintiffs. 

The  true  principle  applicable  in  such  cases  is  stated  by  Walton,  J.,  in 
Parker  v.  Lancaster,  84  Me.  515,  24  Atl.  952,  to  be  that  "when  one  de- 
mands money  under  a  claim  of  right,  and  uses  no  other  means  to  ob- 
tain it  than  importunity  and  persistency,  or  a  threat,  expressed  or  im- 
plied, of  resort  to  litigation  to  obtain  it,  if  it  is  not  voluntarily  paid, 
and  the  one  of  whom  the  money  is  demanded  has  time  for  considera- 
tion and  deliberation,  and  to  obtain  the  advice  of  counsel  or  friends, 
and  the  money  is  then  voluntarily  paid  to  settle  the  demand,  it  cannot 
be  recovered  back,  though  the  demand  is  illegal  and  unjust."  Early 
in  May,  1903,  McLellan  wrote  the  deputy  sheriff  in  regard  to  forfeiture 
of  the  bond,  and  to  notify  the  sureties.  This  letter  was  read  to  plain- 
tiffs, who  then  wrote  the  defendant  for  his  terms.  McLellan  replied 
June  16th,  and  the  check  was  not  sent  till  June  20th.  The  plaintiffs 
therefore  had  ample  time  for  consideration. 

The  rule  of  law  quoted  from  Parker  v.  Lancaster  is  supported  by 
Norris  v.  Blethen,  19  Me.  351,  and  Gooding  v.  Morgan,  37  Me.  419. 
In  the  latter  case.  Chief  Justice  Shepley  says:  "The  law  is  regarded 
as  settled  in  this  state,  if  one  with  a  full  knowledge  of  the  facts  or 
with  the  means  of  knowledge,  voluntarily  pays  money  under  a  claim 
of  right,  that  he  cannot  recover  it  back."  To  the  same  effect  is  Norton 
V.  Marden,  15  Me.  45,  32  Am.  Dec.  132.  See,  also,  Gilpatrick  v.  Say- 
ward,  5  Greenl.  (5  Me.)  465;  Rawson  v.  Porter,  9  Greenl.  (9  Me.) 
119;  Wilson  v.  Barker,  50  Me.  447. 

The  plaintiffs  had  at  hand  the  means  to  learn  all  the  facts  by  an 
inquiry  of  their  servant  daily  seen  by  them.  It  was  inexcusable,  al- 
most culpable  negligence  not  to  consult  him  before  making  the  pay- 
ment. They  intentionally  refrained  from  doing  this  from  an  ulterior 
motive  insufficient  to  justify  their  nonaction.  In  such  case  they  should 
be  charged  with  knowledge  of  what  they  might  easily  and  ought  to 
have  learned,  and  ought  not  to  be  permitted  to  take  advantage  of 
their  self-imposed  ignorance.    This  doctrine  is  sustained  by  East  Had- 


96  BENEFITS   CONFERRED   BY   MISTAKE  (Cll.  2 

darc!  Bank  v.  Scovil,  12  Conn.  310;  Behring  v.  Somerville,  63  N.  J. 
T.aw,  568,  44  Atl.  641,  49  L.  R.  A.  578;  Stevens  v.  Head,  9  Vt.  174, 
31  Am.  Dec.  617;  West  v.  Houston,  4  Har,  (Del.)  170;  Simmons  v. 
Looney,  41  W.  Va.  738,  24  S.  E.  677;  Harner  v.  Price,  17  W.  Va. 
545,  as  well  as  by  the  cases  in  this  state,  supra.  There  are  opposing 
decisions  but  we  are  satisfied  with  the  rule  settled  in  this  state. 

By  making  this  payment  and  obtaining  a  discharge  of  the  execu- 
tion, without  informing  themselves  of  the  fact  of  the  disclosure  of 
Robinson,  the  plaintiffs  placed  the  defendant  in  a  worse  position  than 
he  would  otherwise  have  been,  since  they  thereby  prevented  his  en- 
forcing his  execution  against  the  judgment  debtor  in  some  of  the  ways 
that  were  still  open  to  him.  A  suit  in  which  the  plaintiffs  could  have 
been  summoned  as  trustees  would  apparently  have  secured  all  or  a 
large  part  of  the  debt,  as  the  plaintiffs  owed  Robinson  at  the  end  of 
that  season  over  $200. 

A  majority  of  the  court  is  of  the  opinion  that  the  ruling  below  that 
judgment  should  be  for  the  defendant  is  correct,  and  the  entry  must  be: 

Exceptions  overruled. 


(C)  Chancre  of  Position  by  Defendant 
BULLER  V.  HARRISON. 

(Court  of  King's  Bench,  1777.     Cowp.  565.) 

Upon  shewing  cause  why  a  new  trial  should  not  be  granted  in  this 
case,  Lord  Mansfield  read  his  report  as  follows : 

This  was  an  action  for  money  had  and  received,  brought  by  the 
plaintiff  against  the  defendant,  to  recover  back  a  sum  of  £2100.  paid 
him  as  due  upon  a  policy  of  insurance,  as  agent  for  the  insured,  Messrs. 
Ludlow  and  Shaw,  resident  at  New  York.  This  sum  the  plaintiff 
had  paid,  thinking  the  loss  was  fair.  Notice  of  the  loss  was  given 
by  the  defendant  to  the  plaintiff  on  the  20th  of  April.  Part  of  the 
money  was  paid  at  that  time,  and  the  remainder  on  the  6th  of  May 
following;  on  which  day  the  defendant  passed  the  whole  sum  in  his 
account  with  Messrs.  Ludlow  and  Shaw,  and  gave  credit  to  them  for 
it  against  a  sum  of  £3000.  in  which  they  stood  indebted  to  him.  On 
the  17th  of  May,  notice  was  given  by  the  plaintiff  to  the  defendant 
that  it  was  a  foul  loss.  At  this  time,  nothing  had  happened  to  alter 
the  situation  of  the  defendant,  or  to  make  it  different  from  what  it  was 
on  the  20th  of  April.  He  had  accepted  no  fresh  bills,  advanced  no 
sum  of  money,  nor  given  any  new  credit  to  his  principals ;  but  af- 
fairs between  them  and  him  remained  precisely  in  the  same  situation 
as  on  the  20th  of  April.  The  question  at  the  trial  was,  whether  this 
action  could  be  maintained  against  the  defendant,  as  agent  of  the  in- 
sured;   which   depended   on   this;    whether  the   defendant's    having 


Sec.  1)  THE   GENERAL  DOCTRINE  :    MISTAKE  OF  FACT  97 

placed  this  money  to  the  account  of  his  principals,  in  the  manner  be- 
fore stated,  was  equivalent  to  a  payment  of  it  over. 

In  general  the  principle  of  law  is  clear;  that  if  money  be  mispaid 
to  an  agent  expressly  for  the  use  of  his  principal,  and  the  agent  has 
paid  it  over,  he  is  not  liable  in  an  action  by  the  person  who  mispaid 
it:  because  it  is  just,  that  one  man  should  not  be  a  loser  by  the  mis- 
take of  another ;  and  the  person  who  made  the  mistake  is  not  without 
redress,  but  has  his  remedy  over  against  the  principal.  On  the  other 
hand  it  is  just,  that  as  the  agent  ought  not  to  lose,  he  should  not  be 
a  gainer  by  the  mistake.  And  therefore,  if  after  the  payment  so  made 
to  him,  and  before  he  has  paid  the  money  over  to  his  principal,  the 
person  corrects  the  mistake ;  the  agent  cannot  afterwards  pay  it  over 
to  his  principal,  without  making  himself  liable  to  the  real  owner 
for  the  amount.  But  the  present  case  turns  upon  this ;  that  the  agent 
was  precisely  in  the  same  situation  at  the  time  the  mistake  was  dis- 
covered, as  before.  At  the  trial  I  inclined  to  think  the  plaintiff  ought 
to  recover;  but  did  not  direct  the  jury;  and  they  found  for  the 
defendant.  I  am  satisfied  I  mistook  in  leaving  it  open  to  the  jury: 
for  it  is  clearly  a  question  of  law,  not  a  matter  of  fact :  and  in  con- 
science the  defendant  is  not  entitled  to  retain  the  money.  Therefore  I 
should  have  let  it  to  the  jury  in  this  manner;  if  you  are  satisfied  that 
the  money  was  paid  by  mistake,  and  the  defendant's  situation  not  al- 
tered by  any  new  circumstance  since,  but  that  every  tiling  remained 
in  the  same  state  as  it  was  on  the  20th  of  April,  you  ought  to  find  for 
the  plaintiff. 

Mr.  Wallace  and  Mr.  Dunning  were  in  support  of  the  rule;  but 
Lord  Mansfield  thought  the  case  so  clear,  that  his  Lordship  stopped 
Mr,  Dunning,  as  being  unnecessary  to  give  himself  any  trouble. 

Lord  Mansfield.  I  am  very  glad  this  motion  has  been  made:  for 
I  desire  nothing  so  much  as  that  all  questions  of  mercantile  law  should 
be  fully  settled  and  ascertained ;  and  it  is  of  much  more  consequence 
that  they  should  be  so,  than  which  way  the  decision  is.  The  jury  were 
embarrassed  on  the  question  whether  this  was  a  payment  over.  To 
many  purposes  it  would  be.  It  is  now  argued,  that  this  is  not  a  mere 
placing  to  account,  but  a  making  rest.  If  it  were,  it  would  not  vary 
the  case  a  straw.  I  verily  believe  the  jury  were  entangled  in  con- 
sidering it  as  a  payment  over.  There  is  no  imputation  upon  a  man 
who  trusts  to  a  misrepresentation  of  the  insured.  It  is  greatly  to  his 
honour ;  but  it  malces  it  of  consequence  to  him  to  know,  how  far  his 
remedy  goes  if  he  is  imposed  upon.  The  whole  question  at  the  trial 
was,  whether  the  defendant,  who  was  an  agent,  had  paid  the  money 
over.  Now,  the  law  is  clear,  that  if  an  agent  pay  over  money  which 
has  been  paid  to  him  by  mistake,  he  does  no  wrong ;   and  the  plaintiff 

must  call  on  the  principal ;    and  in  the  case  of  Muilman  v.  , 

where  it  appeared  that  the  money  was  paid  over,  the  plaintiff  was 
nonsuited.  But,  on  the  other  hand  shall  a  man,  though  innocent,  ga'n 
Thues.Quasi  Cont. — 7 


98  BENEFITS   CONFERRED   BY   MISTAKE  (Ch.  2 

by  a  mistake,  or  be  in  a  better  situation  than  if  tlie  mistake  had  not 
happened?  Certainly  not.  In  this  case,  there  was  no  new  credit,  no 
acceptance  of  new  bills,  no  fresh  goods  bought  or  money  advanced. 
In  short,  no  alteration  in  the  situation  which  the  defendant  and  his 
principals  stood  in  towards  each  other  on  the  20th  of  April.  What 
then  is  the  case?  The  defendant  has  trusted  Ludlow  &  Co.  and  given 
them  credit.  He  trafficks  to  the  country  where  they  live,  and  has 
agents  there  who  know  how  to  get  the  money  back.  The  plaintiff  is 
a  stranger  to  them  and  never  heard  of  their  names.  Is  it  conscien- 
tious then  that  the  defendant  should  keep  money  which  he  has  got 
by  their  misrepresentation,  and  should  say,  though  there  is  no  altera- 
tion-in  my  account  with  my  principal,  this  is  a  hit,  I  have  got  the 
money  and  I  will  keep  it?  If  there  had  been  any  new  credit  given,  it 
would  have  been  proper  to  have  left  it  to  the  jury  to  say,  whether  any 
prejudice  had  happened  to  the  defendant  by  means  of  this  payment: 
but  here  no  prejudice  at  all  is  proved,  and  none  is  to  be  inferred. 
Under  these  circumstances  I  think  (and  Mr.  Justice  Aston  with 
whom  I  have  talked  the  matter  over  is  of  the  same  opinion)  that  the 
defendant  has  no  defence  in  point  of  law,  and  in  point  of  equity  and 
conscience  he  ought  not  to  retain  the  money  in  question. 

Mr.  Justice  Wii^les  and  Mr.  Justice  Ashhurst  were  of  the  same 
opinion. 

Per  Cur.    Rule  for  a  new  trial  absolute. 


NEWALL  V.  TOMLINSON. 

(Court  of  Common  rieas,  1871.     6  Com.  Tl.  405.) 

Action  for  money  had  and  received,  money  paid,  interest,  and  money 
found  due  upon  accounts  stated.     Plea,  never  indebted. 

The  cause  was  tried  before  Willes,  J.,  at  the  last  assizes  at  Liver- 
pool. The  facts  were  as  follows:  The  plaintiffs  and  the  defendants 
were  respectively  cotton-brokers  in  Liverpool.  In  April,  1870,  the 
plaintiffs  bought  of  the  defendants  74  bales  of  cotton  ex  Glen  Cora, 
each  acting  for  principals  whose  names  were  not  disclosed,  and  ac- 
cording to  the  usage  of  the  cotton-market  each  treating  the  others  as 
principals  in  the  transaction.  Weight-lists  of  the  cotton  were  in  the 
ordinary  course  delivered  to  each  party  from  the  warehouse-keeper 
at  Albert  Dock ;  but  a  clerk  of  the  defendants  made  a  mistake  of  100 
cwt.  in  adding  up  the  figures,  and  the  consequence  was  that  when 
the  plaintiffs  paid  for  the  cotton  they  paid  tlie  defendants  too  much 
by  £509.  15s.  The  mistake  was  not  discovered  until  the  14th  of  Decem- 
ber, when  the  plaintiffs  demanded  back  that  sum.  The  invoice  for 
the  cotton  (which  was  delivered  on  the  22d  of  April)  was  headed  as 
follows:   "Messrs.  Newall  &.  Clayton,  bought  from  W.  D.  Tomlinson 


Sec.  1)  THE   GENERAL   DOCTRINE  :    MISTAKE   OF   FACT  99 

&  Co."  &c. ;  and  it  was  not  until  after  the  discovery  of  the  mistake 
that  the  plaintiffs  were  informed  (as  the  fact  was)  that  Messrs.  Dixon 
&  Co.  were  the  defendants'  principals. 

In  the  meantime  the  defendants,  who  had  previously  to  the  arrival 
of  the  cotton,  advanced  very  considerable  sums  to'  the  shippers  Messrs. 
Dixon  &  Co.,  had  allowed  the  sum  in  question  in  their  account  with 
them,  and  had  subsequently  gone  on  making  further  advances;  and 
when  Dixon  &  Co.  ultimately  suspended  payment,  the  balance  due  from 
them  to  the  defendants  on  account  of  these  transactions  exceeded 
i2,000.  The  defendants  thereupon  claimed  to  be  entitled  to  shelter 
themselves  under  the  rule  of  law  which  protects  payments  bona  fide 
made  by  an  agent  to  his  principal,  without  notice;  and  at  the  trial  it 
was  submitted  on  their  behalf,  that,  being  known  to  be  brokers,  and 
being  under  advances  to  their  principals,  whether  the  plaintiffs  knew 
that  they  were  acting  for  principals  or  not,  they  (the  defendants)  were 
entitled  and  bound  to  hand  over  the  money  to  their  principals,  or  (which 
was  the  same  thing)  entitled  to  set  it  off  against  their  advances,  and 
having  done  so,  were  not  liable  to  be  called  upon  to  refund  it. 

The  'learned  judge  in  his  summings-up  said  that  every  agent  for 
the  sale  of  goods  who  has  advanced  money  upon  tliem  and  has  them 
in  his  possession,  has  a  right  to  sell  them  as  owner,  unless  there  be 
a  countermand  of  his  authority;  and  he  distinguished  the  cases  cited, 
on  the  ground  that  in  both  of  them  the  persons  who  dealt  with  the 
agent  knew  that  they  were  dealing  with  one  who  represented  an  un- 
disclosed principal ;  whereas  here  the  defendants,  though  general  brok- 
ers, acted  in  the  particular  case- as  principals,  and  he  directed  the  jury 
to  find  for  the  plaintiffs,  damages  £509.  15s.,  reserving  leave  to  the 
defendants  to  move  to  enter  a  verdict  for  them,  or  a  nonsuit,  if  the 
Court  should  think  the  ruling  wrong.^^ 

Quain,  Q.  C,  moved  accordingly. 

BoviLL,  C.  J.  The  defendants  in  the  first  instance  personally  claim- 
ed the  price  of  the  cotton  from  the  plaintiffs  as  upon  a  sale  to  them 
by  the  defendants,  each  being,  as  between  themselves,  personally 
bound  as  principals  in  the  transaction,  though  each  were  acting  for 
principals  whose  names  were  not  disclosed.  The  invoice  was  made 
out  as  upon  a  sale  from  the  defendants  to  the  plaintiffs,  and  claiming 
the  price  as  being  due  to  the  defendants  personally ;  and  each  was  lia- 
ble personally  to  the  others  for  the  due  performance  of  the  contract. 
The  defendants  were  entitled  to  sue  for  and  recover  the  price  of  the 
cotton  in  their  own  names,  and  to  apply  it  when  received  to  their  own 
use  and  benefit.  They  had  made  large  advances  to  their  principals, 
Messrs.  Dixon  &  Co.,  upon  the  security  of  the  cotton,  and  were  enti- 
tled to  sell  it  to  recoup  themselves.  In  no  sense  could  they  be  said 
to  have  received  this  money  for  the  purpose  of  handing  it  over  to 
Messrs.  Dixon  &  Co, ;   nor  did  tliey  m  point  of  fact  hand  it  over  to 

81  The  statement  of  facts  is  abridged. 


'100  BENEFITS  CONFERRED  BY   MISTAKE  (Ch.  2 

them.  It  is  true  that  the  defendants  were  shewn  to  have  made  further 
advances  to  Messrs.  Dixon  &  Co.  subsequently  to  the  receipt  by  them 
of  this  money.  That,  however,  could  not  make  it  money  had  and  re- 
ceived by  Messrs.  Dixon  &  Co.  to  the  use  of  tlie  plaintiffs,  so  as  to 
enable  them  to  sue  Messrs.  Dixon  &  Co.  for  it.  The  mistake  originated 
with  the  defendants  themselves,  and  they  alone  are  responsible.  The 
cases  relied  on  are  clearly  distinguishable.  In  Shand  v.  Grant,  15  C. 
B.  (N.  S.)  324,  the  defendant  received  the  money  as  agent  of  the  ship- 
owner, and  for  the  purpose  of  handing  it  over  to  him.  The  case  was 
put  entirely  upon  the  ground  that  the  defendant  was  a  mere  agent. 
He  had  handed  over  tlie  money  to  his  principal,  and  the  principal  was 
the  proper  person  to  sue.  So  in  Holland  v.  Russell,  the  same  view  was 
taken,  and  the  decision  proceeded  upon  the  ground  that  the  defendant 
was  a  mere  agent.  Cockburn,  C.  J.,  in  delivering  the  judgment  of  the 
Court  below,  after  stating  what  had  been  the  contention  on  one  side 
and  on  the  other,  says  (1  B.  &  S.  424,  at  p.  432;  30  L.  J.  [Q.  B.] 
308,  at  p.  312):  "We  are  of  opinion  that  the  plaintiff  fails  upon  the 
facts.  Not  only  is  it  clear  that  the  defendant  was  acting  solely  as 
agent,  but  (the  Court  having  power  to  draw  inferences  of  fact)  we  are 
of  opinion  that  the  plaintiff  was  aware  that  the  defendant  was  acting 
as  agent  for  the  foreign  owners,  and  as  such  made  to  him  the  payment 
of  the  money  he  now  seeks  to  recover  back."  And,  when  the  case 
came  before  the  Court  of  error,  the  same  view  was  taken.  Erie,  C.  J., 
delivering  the  judgment  of  that  Court,  says  (4  B.  &  S.  14,  at  p.  15; 
32  L.  J.  [Q.  B.]  297,  at  p.  298):  "The  defendant  who  received  this 
money  from  the  plaintiff  received  it  as  agent  for  a  foreign  principal. 
The  plaintiff  knew  that,  and  paid  him  in  that  capacity,  with  the  in- 
tention that  he  should  pay  it  over  to  that  principal,  and  he  did  so; 
and  all  tlie  money  thus  received  has  been  accounted  for  in  a  settle- 
ment of  account  approved  by  tlie  foreign  principal,  under  circum- 
stances which  clearly  amount  to  payment  of  that  sum  to  him.  The  de- 
fendant having  therefore  been  altogether  an  agent  in  the  matter,  is 
there  anything  which  takes  him  out  of  the  ordinary  protection  to  which 
an  agent  is  entitled  who  pays  money  to  his  principal  before  he  re- 
ceived notice  not  to  pay  it,  and  before  he  knew  that  there  was  no 
legal  duty  on  him  to  do  so?  There  is  nothing  in  this  case  to  deprive 
the  defendant  of  the  right  of  an  ordinary  agent  so  to  protect  himself." 
Here  the  defendants  were  not  mere  agents.  They  were  dealing  as 
principals,  and  entitled  to  apply  the  proceeds  of  the  sale  of  the  cotton 
to  their  own  use.  For  these  reasons  I  am  of  opinion  that  the  direction 
of  the  learned  judge  was  right,  and  that  there  should  be  no  rule. 

BylES,  J.  I  entirely  agree  with  what  has  fallen  from  my  Lord  upon 
the  first  point.  The  defendants  did  not  receive  the  money  as  mere 
agents :  they  received  it  for  their  own  use  and  benefit.  In  addition, 
I  would  observe  that  the  defendants  here  are  seeking  to  excuse  one 
mistake  by  another.  They  paid  over  (or  accounted  for)  the  money  to 
their  employers,  if  not  with  recollection,  yet  with  notice  of  the  facts. 


Sec.  1)  THE   GENERAL  DOCTRINE  I    MISTAKE  OF  FACT  101 

If  they  were  mere  agents,  they  were  bound  to  remember.  On  both 
grounds,  therefore,  I  think  the  verdict  was  right. 

Montague  Smith,  J.  I  am  of  the  same  opinion.  Upon  the  facts 
appearing,  the  defendants  were  not  mere  agents  to  receive  the  money 
for  Dixon  &  Co.,  and  to  hand  it  over  to  them.  They  received  it  on 
their  own  account,  and  had  a  right  so  to  receive  it  and  to  appropriate 
it  to  their  own  use.  They  were  not  mere  conduit-pipes;  they  were 
in  some  sense  principals,  and  had  a  right  to  appropriate  the  money 
in  satisfaction  of  their  advances  to  Dixon  &  Co.,  and  they  did  so. 
What  is  said  by  Lord  Mansfield  in  Buller  v.  Harrison,  2  Cowp.  at 
p.  568,  seems  to  me  to  be  very  much  in  point:  "The  law,"  he  says, 
"is  clear,  that,  if  an  agent  pay  over  money  which  has  been  paid  him  by 
mistake,  he  docs  no  wrong;  and  the  plaintiff  must  call  on  the  princi- 
pal :    and  in  the  case  of  Muilman  v.  ,  where  it  appeared  that 

the  money  was  paid  over,  the  plaintiff  was  nonsuited.  But,  on  the 
other  hand,  shall  a  man,  though  innocent,  gain  by  a  mistake,  or  be  in 
a  better  situation  than  if  the  mistake  had  not  happened?  Certainly 
not."  If  the  argument  of  Mr.  Quain  were  to  prevail,  the  defendants 
clearly  would  be  in  a  better  position  than  if  the  mistake  had  not  hap- 
pened. They  received  the  money  and  appropriated  it  towards  satis- 
faction of  their  own  debt.  I  think  the  defendants  were  not,  to  use 
the  words  of  Erie,  C.  J.,  in  Holland  v.  Russell,  4  B.  &  S.  at  p.  16, 
agents  altogether.  As  between  themselves  and  the  plaintiffs,  they  were 
principals. 

Brett,  J.  I  am  of  the  same  opinion.  The  defendants  were  orig- 
inally liable  because  under  a  mistake  they  received  money  which  they 
were  not  entitled  to.  They  cannot  get  rid  of  that  liability,  unless 
they  bring  themselves  within  the  rule  as  to  an  agent  who  has  received 
money  on  account  of  his  principal  and  has  paid  it  over  to  him.  It 
§eems.  to  me  that  they  have  failed  to  bring  tliemselves  within  that 
rule.  They  did  not  receive  this  money  for  their  principals.  They 
stood  with  regard  to  the  plaintiffs  as  original  contractors.  I  should 
be  sorry,  however,  to  decide  the  case  on  that  ground  alone.  The  money 
in  question  was  received  by  the  defendants,  not  only  as  between  the 
plaintiffs  and  themselves,  but  also  as  between  Dixon  &  Co.  and  them- 
selves, on  their  own  account,  and  not  on  account  of  Dixon  &  Co.  Be- 
ing under  advances,  they  had  a  right  to  sell  the  cotton  and  receive  the 
proceeds  on  their  own  account.  They  cannot,  therefore,  say  that  they 
received  the  i509.  15s.  in  question  to  the  use  of  their  principals;  and 
consequently  they  do  not  bring  themselves  within  the  rule  relied  on. 
I  will  only  add  that  I  found  my  judgment  entirely  upon  that  view, 
and  I  do  not  rely  on  the  ground  that  the  money  was  received  by  tlie 
defendants  through  a  mistake  of  their  own. 

Rule  refused.^^ 

82  In  Continental  Caoutchouc  &  Gutta  Percha  Company  v.  Kleinwort,  Sons 
&  Co.  (1004)  15  L.  T.  R.  474,  Collins.  M.  R.,  in  the  course  of  his  opinion,  said: 
"It  is  clear  law  that  prima  facie  the  person  to  whom  money  has  been  paid 


102  BENEFITS  CONFERRED   BY   MISTAKE  (Ch.  2 

DURRANT  V.   ECCLESIASTICAL   COM'RS    FOR   ENGLAND 

AND  WALES. 

(Queen's  Bench  Division,  ISSO.     6  Q.  B.  Div.  234.) 

Special  case,  stated  by  way  of  appeal  from  the  judgment  of  the 
judge  of  the  county  court  of  Downham  in  favour  of  the  plaintiff,  in 
an  action  brought  to  recover  back  an  amount  of  tithe  commutation 
rent-charge  paid  to  the  defendants  as  rectors  of  the  rectory  of  Crim- 
plesham,  under  a  mistake  of  fact. 

The  material  facts  appearing  in  the  case  were  the  following: 

Prior  to  Michaelmas,  1870,  certain  lands  in  the  parish  of  Crimples- 
ham,  in  Norfolk,  were  held  by  a  Mr.  Hodgkinson  as  tenant.  At 
Michaelmas,  1870,  the  plaintiffs  succeeded  Hodgkinson  in  his  tenancy, 
except  as  to  a  part  of  the  land  called  Stanks,  consisting  of  about 
twenty-five  acres,  which  was  cut  off  and  thenceforward  held  separate- 
ly. The  action  was  brought  to  recover  back  tithe  which  accrued  due 
between  the  10th  of  April,  1874,  and  the  1st  of  October,  1876,  in  re- 
spect of  Stanks,  and  was  paid  by  the  plaintiff  to  the  defendants. 

The  defendants  became  owners  in  possession  of  the  tithe  of  the 
parish  of  Crimplesham  on  the  10th  of  April,  1874.  The  names  of  the 
persons  for  the  time  being  occupying  the  respective  hereditaments 
subject  to  the  tithe  were  put  down  in  the  collecting  book  of  the  tithe 
owner's  agent,  which  was  used  by  the  collector  at  the  tithe  audit. 
When  Hodgkinson  gave  up  his  tenancy  the  name  of  the  plaintiff  was 
substituted  in  the  collecting  book  of  the  then  collector  for  that  of 
Hodgkinson  in  respect  of  all  the  lands,  including  Stanks.  From  that 
time  until  April,  1874,  the  collector  for  the  lessees,  and  afterwards  the 
collector  for  the  defendants,  gave  notices  to  the  plaintiff",  as  an  occu- 
pier of  lands  in  the  parish,  to  pay  the  tithe  for  the  lands  that  appeared 
by  the  collecting  book  to  be  occupied  by  him,  without  any  knowledge  on. 
his  or  their  part  that  the  plaintiff  did  not  occupy  the  land  called  Stanks, 
or  that  the  plaintiff  was  not  liable  to  pay  tithe  for  the  same,  being 
guided  simply  in  the  notices  of  audit  by  the  list  above  mentioned. 

The  plaintiff  paid  his  tithe  according  to  the  notices,  in  ignorance 
that  the  amount  specified  in  the  notices  included  the  tithe  for  Stanks 
not  occupied  by  him.  The  tenant  of  Stanks,  who  was  liable  under 
an  agreement  with  the  landlord  to  pay  tithe,  was  not  asked  to  pay  for 
that  land  until  after  the  plaintiff,  in  April,  1877,  accidentally  disco v- 


under  a  mistake  of  fact  is  liable  to  refund  it,  even  though  he  may  have  paid 
it  away  to  third  parties  in  ignorance  of  the  mistake.  He  has  had  the  benelit 
of  the  windfall  and  must  restore  it  to  the  true  owner.  On  the  other  hand,  it  is 
equally  clear  that  an  intermediary  who  has  received  money  for  the  purpose 
of  handing  it  on  to  a  third  partj',  and  has  handed  it  on,  is  no  longer  account- 
able to  the  sender.  In  such  case  he  is  a  mere  conduit-pipe,  and  has  not  had 
the  benefit  of  the  windfall." 
The  authorities  are  collected  in  a  note  in  23  L.  R.  A.  (N.  S.)  553. 


Sec.  1)  THE   GENERAL   DOCTRINE  :    MISTAKE  OF  FACT  103 

ered  that  he  was  paying  tithe  for  land  not  in  his  possession,  and  re- 
fused to  pay  it  any  more. 

The  question  for  the  opinion  of  the  Court  was  whether,  i.inder  these 
circumstances,  the  plaintiff  was  entitled  to  recover  back  any  and  what 
part  of  the  tithe  so  paid  by  him  to  the  defendants  ? 

Pollock,  B.  I  agree  in  the  decision  arrived  at  by  the  county  court 
judge  in  favour  of  the  plaintiff.  If  the  mistake,  which  was  common 
to  both  parties,  had  been  discovered  within  a  certain  time  after  the 
payment  the  defendants  could  have  obtained  the  tithe  from  tlie  ten- 
ant. The  fact  that  the  mistake  was  not  discovered  in  time  prevents 
this,  and  so  alters  the  position  of  the  defendants ;  but  there  is  no 
conduct  on  the  part  of  the  plaintiff  such  as  would  disentitle  him  from 
recovering  in  this  action.  In  Cocks  v.  Masterman,  9  B.  &  C.  902,  the 
ground  of  the  decision  was  that  tlie  banker  should  bear  the  loss,  be- 
cause he  had  not  done  that  which  bankers  are  bound  to  do,  given  no- 
tice of  the  forgery  of  the  cheque  when  it  became  due.  This  and  other 
similar  cases  proceed  upon  the  ground  of  some  mutual  relation  between 
the  parties  creating  a  duty  on  the  part  of  the  plaintiff,  breach  of 
which  disentitles  him  from  recovering.  No  such  state  of  facts  exists 
here,  and  the  plaintiff,  having  paid  the  money  under  a  mistake  of  fact, 
is  entitled  to  recover  it  back. 

Hawkins,  J.,  concurred. 

Judgment  for  the  plaintiff.^' 


ATLANTIC  COAST  LINE  R.  CO.  v.  SCHIRMER. 

(Supreme  Court  of  South  Carolica,  1910.     87  S.  O.  309,  G9  S.  E.  439.) 

Appeal  from  Common  Pleas  Circuit  Court  of  Charleston  County; 
C.  G.  Dantzer,  Judge. 

Action  by  the  Atlantic  Coast  Line  Railroad  Company  against  C.  C. 
Schirmer  and  another,  copartners  as  Jacob  S.  Schirmer  Si  Sons.  From 
the  judgment,  plaintiff  appeals. 

The  report  of  F.  K.  Myers,  as  master,  referred  to  in  the  opinion, 
is  as  follows: 
"To  the  Honorable  the  Court  of  Common  Pleas: 

'AH  issues  of  law  and  fact  in  this  case  were  referred  to  the  under- 
signed master  by  an  order  dated  October  9,  1909.  After  taking  testi- 
mony and  hearing  argument,  I  have  reached  the  following  conclusions 
of  fact: 

"On  the  10th  day  of  November,  1906,  the  defendants  herein,  C.  C. 
Schirmer  and  William  Schirmer,  trading  as  Jacob  S.  Schirmer  &  Sons, 

33  Accord:  Kingston  Bank  v.  Eltinge  (1S69)  40  N.  Y.  391,  100  Am.  Dec.  51G, 
(but  see  Ball  v.  Shepard  fl911]  202  N.  Y.  247,  9.j  N.  E.  719) ;  Houston  &  T.  C. 
Ry.  Co.  V.  Hughes  (Tex.  Civ.  App.  1911)  i:«  S.  W.  731. 

See  also  Phetteplace  v.  Buckliu  (lb93)  IS  II.  I.  297,- 27  Atl.  211. 


104  BENEFITS   CONFERRED   BY   MISTAKE  (Ch.  2 

in  the  city  of  Charleston,  deHvered  to  tlie  plaintiff,  Atlantic  Coast  Line 
Railroad  Company,  a  shipment  of  rice  valued  at  $31.25  for  delivery 
to  W.  R.  Wilson,  at  Statesboro,  Ga.  Schirmer  filed  a  claim  with  the 
railroad  company  on  December  28,  1906,  for  the  value  of  the  shipment, 
having  previously  requested  that  the  goods  be  traced  and  notifying  the 
railroad  that  consignee  reported  nondelivery.  The  claim  of  Schirmer 
was  paid  by  the  plaintiff  company  on  May  20,  1907.  On  or  about  May 
23,  1908,  the  railroad  company  informed  Schirmer  that  this  shipment 
had  been  delivered  to  consignee  on  the  26th  day  of  November,  1906, 
and  demanded  a  return  of  the  amount  of  claim  paid,  which  it  now 
seeks  to  enforce  in  this  case,  on  the  ground  of  mistake. 

"How  did  the  mistake  of  facts  arise  resulting  in  this  payment? 
Defendants  had  information  from  consignee  that  the  shipment  was 
not  delivered,  and  transmitted  that  information  to  the  railroad  com- 
pany, giving  its  source.  The  responsibility  then  rested  upon  the  rail- 
road company  to  trace  the  shipment  and  report  delivery,  if  made,  to 
defendants,  so  that  they  might  enforce  payment  from  consignee.  With 
a  denial  of  receipt  from  consignee,  defendants  had  no  method  of  as- 
certaining delivery  except  from  the  railroad  company.  Five  months 
after  the  claim  was  filed,  the  railroad  company  paid  the  claim,  and  one 
year  after  payment  notified  the  defendants  that  delivery  had  been 
made  on  November  26,  1906,  and  demanded  a  return  of  the  money. 
The  testimony  shows  that  in  the  interim  the  consignee  had  gone  out  of 
business  and  moved  away. 

"I  do  not  think  it  can  be  said  in  this  case  that  the  payment  was  made 
under  a  mistake  of  facts,  because  there  was  a  duty  upon  the  plaintiff 
to  ascertain  the  facts,  and  more  than  reasonable  time  before  the  pay- 
ment was  made  in  which  to  do  so. 

"Nor  is  this  a  case  in  which  there  was  *no  subsequent  change  in 
relative  conditions.'  Nor  can  defendants  be  said  to  have  been  paid 
money  which  they  have  no  grounds  in  conscience  to  retain. 

"I  therefore  respectfully  recommend  that  the  complaint  be  dismissed 
with  costs." 

Hydrick,  J.^*  The  facts  of  this  case  are  fully  and  clearly  stated 
in  the  report  of  the  master,  F.  K.  Myers,  Esq.,  whose  report  was  con- 
firmed and  made  the  judgment  of  the  circuit  court.  This  being  a  case 
at  law,  the  findings  of  fact  below,  having  any  testimony  to  support 
them,  are  not  reviewable  by  this  court.  The  conclusions  of  law  based 
upon  the  facts  found  are  correct.     *     *     * 

The  correspondence  between  defendants  and  plaintiff's  agent  shows 
that,  before  the  claim  was  paid  by  plaintiff,  defendants  called  attention 
to  their  claim  for  this  shipment  several  times,  and  asked  for  a  report 
upon  it,  stating  that  the  goods  were  sold  on  30  days'  time,  that  the  ship- 
ment had  already  been  out  for  50  days,  and  that  they  had  lately  heard 
that  the  consignee  was  "in  a  bad  way  financially,"  and  requesting  the 

34  A  portion  of  the  master's  report  and  a  portion  of  the  opinion  are  omitted. 


Sec.  1)  THE   GENERAL  DOCTRINE  :    MISTAKE   OF   FACT  105 

"stoppag-e  of  delivery,"  if  the  goods  should  arrive  at  destination,  as 
they  would  hold  the  road  liable  for  them.  Nearly  four  months  after 
receiving  this  information,  plaintiff  paid  the  claim,  and  not  until  a  year 
afterwards  did  it  notify  defendants  of  the  delivery  of  the  goods  and 
demand  return  of  the  money.  Defendants'  testimony  tended  to  show 
that  the  consignee  had  made  prompt  payment  for  all  prior  shipments, 
but  had  never  paid  for  this  one,  and  that,  in  the  meantime,  he  had  gone 
out  of  business  and  moved  away  from  Statesboro,  and  defendants 
had  been  unable  to  locate  him. 

From  these  facts  and  circumstances,  we  cannot  say  that  the  find- 
ing that  the  relative  situation  of  the  parties  had  changed  was  wholly 
without  testimony  to  support  it.  While  even  the  negligence  of  one 
paying  money  under  a  mistake  of  facts  should  not,  in  all  cases, 
preclude  his  recovering  it,  he  will  not  be  allowed  to  do  so,  if  the  situa- 
tion of  the  party  receiving  it  has  thereby  been  materially  changed  so 
that  his  original  position  cannot  be  restored.  22  A.  &  E.  Ency.  L.  (2d 
Ed.)  624.    Affirmed." 


(D)  Purchase  for  Value 
MERCHANTS'  INSURANCE  CO.  v.  ABBOTT. 

(Supreme  Judicial  Court  of  Massachusetts,  1881.     131  Mass.  397.) 

Gray,  C.  J.'®  These  actions  are  in  the  nature  of  assumpsit  for 
money  had  and  received,  with  special  counts  alleging  that  the  plain- 
tiffs were  induced  to  pay  the  money  by  fraud  and  mistake.  The  five 
cases  were  tried  together,  but  are  not  exactly  alike. 

In  the  first  action,  which  is  brought  by  the  Merchants'  Insurance 
Company  of  Providence,  R.  I.,  against  Charles  W.  Abbott  and  the 
members  of  the  firm  of  Denny,  Rice  &  Co.,  the  material  facts  are 
shown  by  the  report  of  the  presiding  justice  and  the  special  findings  of 
the  jury  to  be  as  follows : 

On  March  17,  1876,  a  woollen  mill  was  destroyed  by  fire,  upon  the 
contents  of  which  Abbott  held  a  policy  of  insurance  from  the  plain- 
tiffs in  the  sum  of  $2,500,  payable  in  sixty  days  after  satisfactory 

35  Accord:  Boas  v.  Updegrove  (1847)  5  Pa.  516,  47  Am.  Dec.  425;  Ball  v. 
Shepard  (1911)  202  N.  Y.  247,  95  N.  E.  719,  semble.  In  tlie  latter  case  Werner, 
J.,  said:  "There  can  be  no  recovery  [of  a  payment  made  under  mutual  mistake 
of  fact]  if  by  reason  of  the  payment  the  party  receiving  it  has  so  changed  hib' 
position  to  his  prejudice  that  it  would  be  unjust  to  require  him  to  refund. 
Kat.  Bank  of  Commerce  v.  Nat.  Mechanics'  Banking  Ass'n  (1873)  55  N.  Y.  211, 
213,  14  Am.  Rep.  232,  and  Hathaway  v.  County  of  Delaware  (190G)  185  N.  Y. 
368,  370,  78  N.  E.  1.53,  13  L.  It.  A,  (N.  S.)  273,  113  Am.  St.  Rep.  909.  If  circum- 
stances do  exist  taking  such  a  case  out  of  the  general  rule  permitting  a  re- 
covery, the  burden  of  proving  them  rests  upon  the  party  resisting  the  repay- 
ment.   Mayer  v.  Mayor,  etc.,  of  City  of  New  York  (1875)  63  N.  Y.  455.** 

See  also  note,  page  209,  infra. 

The  authorities  are  discussed  in  20  Harvard  Law  Review,  205. 

88  Portions  of  the  opinion  are  omitted. 


106  BENEFITS   CONFERRED   BY   MISTAKE  (Ch.  2 

proofs  and  adjustment  of  loss,  and  providing  that  any  fraud  or  false 
swearing  in  the  proofs  of  loss  should  avoid  the  policy.  Soon  after 
the  fire,  Abbott  made  and  delivered  to  the  plaintiffs  proofs  of  loss, 
and  they  after  a  reasonable  investigation,  which  disclosed  no  grounds 
for  a  refusal  to  pay,  and  in  ignorance  of  any  fraud  on  Abbott's  part, 
adjusted  the  amount  of  the  loss  in  accordance  with  such  proofs. 

Denny,  Rice  &  Co.  offered  evidence  of  the  following  facts :  At  the 
time  of  the  fire  Abbott  was  indebted  to  them  in  the  sum  of  about 
$4,000.  In  the  latter  part  of  April,  1876,  Abbott  paid  them  about 
$1,500  in  cash,  and,  as  .security  for  the  payment  of  the  rest  of  his  debt, 
executed  an  instrument  in  writing  under  seal,  by  which,  after  reciting 
the  issuing  of  the  policy,  and  that  a  claim  for  loss  had  arisen  under 
it,  he  assigned  to  them  all  his  "claims  upon  said  insurance  company 
for  loss  under  said  policy,"  and  authorized  them  to  demand  and  sue 
for  the  same  in  his  name,  if  necessary,  and  the  proceeds  to  enjoy  to 
their  own  use,  and  generally  to  do  all  and  every  act  in  and  about  the 
premises  which  he  might  do  if  this  assignment  had  not  been  made. 

In  June,  1876,  at  the  expiration  of  the  sixty  days  allowed  by  the  terms 
of  the  policy,  the  plaintiffs,  in  good  faith,  and  not  knowing  of  any 
fraud  on  Abbott's  part,  paid  to  Denny,  Rice  &  Co.  the  amount  of  the 
loss  as  adjusted,  and  took  a  receipt  signed  by  them  in  this  form :  "Bos- 
ton, May  25,  1876.  Received  of  the  Merchants'  Insurance  Company 
of  Providence  $2,478.80  in  full  satisfaction  and  discharge  of  all  claim 
for  loss  and  damage  under  this  policy  by  fire  March  17,  1876,  and 
this  policy  is  hereby  cancelled  and  surrendered."  The  sum  so  paid 
exactly  extinguished  the  debt  of  Abbott  to  Denny,  Rice  &  Company, 
and  they  never  paid  any  part  of  it  to  him. 

The  mill  and  its  contents,  as  the  jury  found,  were  burned  with  the 
knowledge  and  at  the  instigation  of  Abbott,  and  his  proofs  of  loss 
were  false  and  fraudulent.  The  plaintiffs  did  not  learn  that  thty 
had  been  defrauded  until  May,  1877,  and  then  at  once  placed  the 
case  in  the  hands  of  legal  counsel  for  investigation,  and  for  prosecu- 
tion if  investigation  should  warrant  it;  and  on  January  16,  1878, 
brought  this  action.  The  other  defendants  had  no  knowledge  of  any 
fraud,  nor  was  any  demand  for  the  money  made  upon  them  before  this 
action  was  commenced. 

On  June  5,  1877,  Abbott  filed  a  petition  in  bankruptcy,  and  on  Oc- 
tober 3,  1877,  obtained  a  certificate  of  discharge,  and  no  dividend  was 
paid  lout  of  his  estate. 

The  justice  presiding  at  the  trial  ruled  that  Abbott's  certificate  of 
discharge  was  no  bar  to  this  action ;  and,  holding  that  the  facts  of- 
fered to  be  proved  by  the  other  defendants  constituted  no  defence, 
directed  a  general  verdict  for  the  plaintiffs,  and  reported  the  case  for 
such  disposition  and  judgment  as  the  full  court  should  determine. 

There  can  be  no  doubt  of  the  liability  of  Abbott  in  this  ac- 
tion.    *     *     * 


Sec.  1)  THE   GENERAL   DOCTRINE  :    MISTAKE  OF  FACT  107 

As  to  the  other  defendants  a  different  question  is  presented.  If, 
before  receiving  the  money  from  the  plaintiffs,  they  had  known  the 
true  state  of  facts,  and  had  participated  in  Abbott's  fraud,  they  would 
have  been  liable  to  refund  the  money.  Martin  v.  Morgan,  3  Moore, 
635;  s.  c.  1  Brod.  &  Bing.  289;  Gow,  123.  Mason  v.  Waite,  17  Mass. 
560.  But  the  report  states  that  there  was  no  evidence  offered,  nor 
was  it  contended  at  the  trial,  that  they  had  any  knowledge  of  the  fraud- 
ulent conduct  of  Abbott,  but  it  was  conceded  that  they  were  wholly 
innocent  parties. 

As  to  them,  therefore,  assuming  the  truth  of  the  facts  which  they  of- 
fered to  prove,  the  case  stands  thus:  They  held  a  valid  debt  against 
Abbott.  The  assignment  by  Abbott  to  them  was  made  in  consideration 
of  that  debt,  and  to  secure  the  payment  thereof.  The  previous  exist- 
ence of  the  debt  does  not  make  the  assignment  the  less  a  conveyance 
for  value.  Blanchard  v.  Stevens,' 3  Cush.  162,  50  Am.  Dec.  72Z\  Cul- 
ver V.  Benedict,  13  Gray,  7;  Ives  v.  Farmers'  Bank,  2  Allen,  236; 
Railroad  Co.  v.  National  Bank,  102  U.  S.  14,  58,  59,  26  L.  Ed.  61. 
There  is  no  question  of  the  validity  or  of  the  genuineness  of  the  as- 
signment. Having  been  made  after  the  fire,  and  after  the  amount  of 
the  loss  had  been  adjusted  between  the  plaintiffs  and  Abbott,  it  was 
in  legal  effect  an  assignment  of  a  claim  of  Abbott  upon  the  plaintiffs 
for  a  certain  sum  of  money.  That  claim,  not  being  negotiable  in 
form,  could  not  have  been  sued  by  these  defendants  except  in  Abbott's 
name,  and  subject  to  any  defences  which  these  plaintiffs  had  against 
him.  But  the  plaintiffs,  at  Abbott's  request,  and  without  any  suit,  paid 
the  amount  of  the  loss,  as  adjusted  between  themselves  and  Abbott, 
directly  Xo  these  defendants  who  were  wholly  ignorant  and  innocent  of 
the  fraud  of  Abbott. 

The  plaintiffs  do  not  stand  in  the  position  of  resisting  a  claim  of 
Denny,  Rice  &  Co.  on  an  alleged  promise  of  the  plaintiffs,  in  which 
case  Denny,  Rice  &  Co.  would  have  to  prove  a  valid  contract  of  the 
plaintiffs  to  pay  to  them  or  to  Abbott,  their  assignor.  But  the  plain- 
tiffs are  seeking  to  recover  back  from  Denny,  Rice  &  Co.  a  sum  of 
money  which  the  plaintiffs  have  voluntarily  paid  to  them,  and  which 
the  plaintiffs  assert  to  be  wrongfully  withheld  from  them  by  these  de- 
fendants, and  which  they  are  therefore  bound  to  prove  that,  as  be- 
tween these  parties,  the  plaintiffs  have  the  better  right  to,  and  it  is 
inequitable  and  unjust  that  these  defendants  should  retain. 

The  only  contract  of  the  plaintiffs  was  with  Abbott,  and  the  only 
mistake  was  as  between  them  and  him.  The  money  was  voluntarily 
paid  by  the  plaintiffs  in  discharge  of  Abbott's  supposed  claim  upon 
them  under  tiieir  policy,  and  to  these  defendants  as  the  persons  des- 
ignated by  Abbott  to  receive  it,  and  was  in  legal  effect  a  payment  by 
the  plaintiffs  to  Abbott.  These  defendants  received  the  money,  not  in 
satisfaction  of  any  promise  which  the  plaintiffs  had  made  to  them, 
(for  the  plaintiffs  had  made  no  such  promise,)  but  under  the  agreement 


108  BENEFITS   CONFERRED   BY   MISTAKE  (Cll.  2 

of  Abbott  with  these  defendants  that  they  might  receive  it  from  the 
plaintiffs  and  apply  it  to  the  satisfaction  of  Abbott's  debt  to  themselves. 
In  other  vi^ords  the  money  v^/as  paid  by  the  plaintiffs  to  these  defend- 
ants, not  as  a  sum  w^hich  the  latter  were  entitled  to  recover  from  the 
plaintiffs,  but  as  a  sum  which  the  plaintiffs  admitted  to  be  due  to  Ab- 
bott, under  their  own  contract  with  him,  and  which  at  his  request  and 
in  his  behalf  they  paid  to  the^e  defendants,  who  at  the  time  of  re- 
ceiving it  knew  no  facts  tending  to  show  that  it  had  not  in  truth  become 
due  from  the  plaintiffs  to  Abbott.  This  payment  by  the  plaintiffs  to 
these  defendants  at  Abbott's  request  was  a  satisfaction  of  Abbott's 
debt  to  these  defendants,  and  might  have  been  so  pleaded  by  him  if 
sued  by  them  upon  that  debt.  Tuckerman  v.  Sleeper,  9  Cush.  177. 
As  between  the  plaintiffs  and  these  defendants,  there  was  no  fraud, 
concealment  or  mistake.  These  defendants  had  the  right  to  receive 
from  Abbott  the  sum  which  was  paid  to  them.  The  assignment  which 
they  presented  to  the  plaintiffs  was  genuine,  and  was  all  that  it  pur- 
ported to  be.  They  hold  the  money  honestly,  for  value,  with  the  right 
to  retain  it  as  their  own,  under  a  title  derived  from  Abbott,  and  in- 
dependent of  the  fraud  practiced  by  him  upon  the  plaintiffs. 

The  case  stands  just  as  if  the  money  had  been  paid  by  the  plaintiffs 
to  Abbott,  and  by  Abbott  to  these  defendants,  in  which  case  there 
could  be  no  doubt  that,  while  the  plaintiffs  could  recover  back  the 
amount  from  Abbott,  neither  Abbott  nor  the  plaintiffs  could  recover 
the  amount  from  these  defendants.  The  fact  .that  the  money,  in- 
stead of  being  paid  by  the  plaintiffs  to  Abbott,  and  by  Abbott  to  these 
defendants,  was  paid  directly  by  the  plaintiffs  to  these  defendants, 
does  not  make  any  difference  in  the  rights  of  the  parties.  The  two 
forms  do  not  differ  in  substance.  In  either  case,  Abbott  alone  is  lia- 
ble to  the  plaintiffs,  and  these  defendants  hold  no  money  which  ex 
aequo  et  bono  they  are  bound  to  return  either  to  Abbott  or  to  the 
plaintiffs.     *     *     * 

Judgment  for  the  plaintiffs  against  Abbott  alone. 


STEPHENS  V.  BOARD  OF  EDUCATION. 
(Court  of  Appeals  of  New  York,  1S79.     70  N.  Y.  183,  35  Am.  Rep.  511.) 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court, 
in  the  second  judicial  department,  in  favor  of  plaintiff,  entered  upon 
an  order  overruling  exceptions  and  directing  judgment  upon  a  verdict. 

This  action  was  brought  to  recover  moneys  alleged  to  have  been  re- 
ceived by  defendant  belonging  to  plaintiff. 

The  facts  appear  sufficiently  in  the  opinion. 

Andrews,  J.^^  There  is  no  dispute  as  to  the  material  facts.  On 
and  prior  to  the  18th  of  December,  1871,  one  Gill  was  a  member  of 

"  A  portion  of  the  opinion  is  omitted. 


Sec.  1)  THE   GENERAL  DOCTRINE  :    MISTAKE  OF   FACT  109 

the  board  of  education  of  the  city  of  Brooklyn,  and,  as  attorney  for 
said  board,  received  $3,600.84,  the  money  of  the  board,  which  he 
wrongfully  converted  and  appropriated  to  his  own  use.  Soon  after 
the  date  mentioned,  he  procured  from  the  plaintiff  on  a  mortgage 
forged  by  him  on  the  property  of  a  third  person  $4,129.34  in  a  check 
of  the  plaintiff,  which  on  the  21st  of  December,  1871,  he  deposited  in  a 
bank,  to  his  credit,  and  on  the  same  day  drew  his  own  check  on  the 
bank  in  which  the  deposit  was  made,  to  the  order  of  the  board  of  edu- 
cation for  the  amount  of  the  money  fraudulently  appropriated  by  him, 
and  delivered  the  same  to  the  board,  and  the  board  thereupon  credited 
the  check  to  Gill  in  discharge  of  his  debt.  The  check  was  paid  in  due 
course,  and  the  money  received  thereon  was  used  by  the  board  in  its 
business.  The  plaintiff,  about  two  months  thereafter,  ascertained  that 
the  mortgage  received  from  Gill  was  a  forgery,  and  then  demanded 
from  the  defendant  the  money  received  from  Gill.  The  defendant  had 
no  notice,  when  it  received  the  check  from  Gill,  of  the  fraud  by  which 
he  obtained  the  money  of  the  plaintiff,  nor  had  it  any  information  as  to 
the  source  from  which  the  money  to  his  credit  in  tTie  bank  was  derived. 
The  first  information  which  the  defendant  had  of  the  facts  in  respect 
thereto  was  at  the  time  of  the  demand  made  by  the  plaintiff,  before 
referred  to. 

The  question  is  presented  whether,  under  these  circumstances,  the 
plaintiff  can  maintain  an  action  to  recover  the  money  received  by  the 
defendant  from  Gill  and  applied  in  payment  of  the  debt  owing  by  him 
to  the  defendant.  We  are  of  opinion  that  the  action  will  not  lie.  The 
money  having  been  obtained  by  Gill  from  the  plaintiff  by  fraud  and 
felony,  the  former  acquired  no  title  thereto,  and  the  plaintiff  could 
recover  it  from  Gill  if  found  in  his  possession,  or  he  could  follow  it 
into  the  hands  of  any  person  who  received  it  from  Gill  without  consid- 
eration or  with  notice  of  the  fraud  by  which  he  obtained  it.  The 
money  when  deposited  by  Gill  in  the  bank  was  still  the  money  of  the 
plaintiff.  The  bank  was  a  mere  depository  and  while  it  so  remained, 
the  plaintiff  could  have  compelled  the  bank  to  restore  the  money  to 
him  as  the  rightful  owner.  Tradesman's  Bank  v.  Merritt,  1  Paige,  302  ; 
Mechanics'  Bk.  v.  Levy,  3  Paige,  606;  Pennell  v.  Deffell,  4  De  Gex,  M. 
&  G.  372.  But  the  bank,  having  paid  it  out  on  the  check  of  Gill  with- 
out notice  of  any  defect  in  his  title,  was  thereafter  protected  against 
any  claim  of  the  plaintiff  therefor.  The  plaintiff,  however,  passing  by 
the  bank  to  whose  possession  the  money  first  came  from  Gill,  claims  to 
recover  of  the  defendant  on  the  ground  that  the  defendant,  having  re- 
ceived it  from  Gill  in  payment  of  an  antecedent  debt,  cannot  be  permit- 
ted to  retain  it  as  against  the  plaintiff.  No  authority  has  been  cited 
which  sustains  this  position.  The  rule  has  been  settled  by  a  long  line 
of  cases,  that  money  obtained  by  fraud  or  felony  cannot  be  followed  by 
the  true  owner  into  the  hands  of  one  who  has  received  it  bona  fide  and 
for  a  valuable  consideration  in  due  course  of  business.  This,  said  Lord 
Holt  in  1  Salk.  126,  is  "by  reason  of  the  course  of  trade  which  creates 


110  BENEFITS  CONFERRED  BY   MISTAKE  (Ch.  2 

a  property  in  the  assignee  or  bearer."  And  in  Miller  v.  Race,  4  Burr. 
452,  Lord  Mansfield  said :  "The  true  reason  is  upon  account  of  the 
currency  of  it ;  it  cannot  be  recovered  after  it  has  passed  into  currency." 

No  suspicion  is  cast  upon  the  bona  fides  of  the  defendant.  It  re- 
ceived the  money  in  the  ordinary  course  of  business,  and  for  a  good 
and  valid  consideration.  The  defendant  had  no  connection  with  the 
fraud  of  Gill.  He  did  not  act  or  assume  to  act  as  the  defendant's  agent 
in  the  transaction  with  the  plaintiff.  The  money  was  not  obtained 
through  or  by  means  of  his  relation  to  the  defendant.  The  position 
and  rights  of  the  parties  are  precisely  the  same  as  if  Gill  had  not  been 
a  member  of  the  board  when  the  payment  was  made,  or  as  if  the  debt 
which  he  paid  had  not  originated  in  any  violation  of  trust.  It  is  said 
that  the  case  is  to  be  governed  by  the  doctrine  established  in  this  State 
that  an  antecedent  debt  is  not  such  a  consideration  as  will  cut  off  the 
equities  of  third  parties  in  respect  of  negotiable  securities  obtained  by 
fraud.  But  no  case  has  been  referred  to  where  this  doctrine  has  been 
applied  to  money  received  in  good  faith  in  payment  of  a  debt.  It  is  ab- 
solutely necessary  for  practical  business  transactions  that  the  payee  of 
money  in  due  course  of  business  shall  not  be  put  upon  inquiry  at  his 
peril  as  to  the  title  of  the  payor.  Money  has  no  ear-mark.  The  pur- 
chaser of  a  chattel  or  a  chose  in  action  may,  by  inquiry,  in  most  cases, 
ascertain  the  right  of  the  person  from  whom  he  takes  tlie  title.  But 
it  is  generally  impracticable  to  trace  the  source  from  which  the  posses- 
sor of  money  has  derived  it.  It  would  introduce  great  confusion  into 
commercial  dealings  if  the  creditor  who  receives  money  in  payment  of 
a  debt  is  subject  to  the  risk  of  accounting  therefor  to  a  third  person 
who  may  be  able  to  show  that  the  debtor  obtained  it  from  him  by 
felony  or  fraud.  The  law  wisely,  from  considerations  of  public  policy 
and  convenience,  and  to  give  security  and  certainty  to  business  trans- 
actions, adjudges  that  the  possession  of  money  vests  the  title  in  the 
holder  as  to  third  persons  dealing  with  him  and  receiving  it  in  due 
course  of  business  and  in  good  faith  upon  a  valid  consideration.  If 
the  consideration  is  good  as  between  the  parties,  it  is  good  as  to  all  the 
world.  "Money,"  said  Lord  Mansfield,  in  Miller  v.  Race,  before  cited, 
"shall  never  be  followed  into  the  hands  of  a  person  who  bona  fide  took 
it  in  the  course  of  currency  and  in  the  way  of  his  business."     *     *     * 

The  judgment  should  be  reversed  and  a  new  trial  ordered.  All  con- 
cur. 

Judgment  reversed.'* 

38  In  Walker  v.  Conant  (1888)  69  Mich.  321,  37  N.  W.  292,  13  Am.  St.  Rep. 
391,  one  Van  Riper  borrowed  $1,000  from  defendant  upon  ttie  security  of  a 
note  and  real  estate  mortgage  purporting  to  be  executed  by  Van  Riper's  father 
upon  the  latter's  farm,  but  in  fact  the  note  and  the  mortgage  had  been  forged 
by  the  son.  Subsequently  the  younger  Van  Riper,  ostensibly  on  his  father's 
behalf,  negotiated  with  plaintiff  for  a  loan  of  $3,000  to  be  secured  by  a  mort- 
gage on  the  same  premises  and  agreed  that  $1,000  of  such  loan  should  be 
applied  to  the  discharge  of  defendant's  mortgage.  Accordingly  plaintiff 
paid  defendant  $1,000  and  advanced  to  Van  Riper  $2,000,  who  delivered  to 
plaintiff   a   second   note   and   mortgage,   purporting   to   be  executed   by   his 


Sec.  1)  THE   GENERAL   DOCTRINE:    MISTAKE   OF   FACT  111 

III.  Notice  and  Demand — Accrual  of  Cause  of  Action 
WORLEY  V.  MOORE. 

(Supreme  Court  of  Judicature  of  Indiana,  ISSl.     77  Ind.  567.) 

From  the  Monroe  Circuit  Court. 

Elliott,  C.  J.^^  The  first  paragraph  of  the  a*ppellee's  complaint 
alleges  that  a  mistake  was  made  in  computing  interest  in  the  settle- 
ment of  accounts  between  him  and  the  appellant,  and  that,  by  reason 
of  such  mistake,  he  was  induced  to  pay  the  appellant  a  much  greater 
sum  than  was  due  him.  Two  points  are  made  against  this  paragraph : 
First,  that  it  is  insufficient,  because  it  does  not  show  notice  of  the  mis- 
take to  the  appellant  prior  to  the  commencement  of  the  action.  Second, 
that  it  is  insufficient,  because  it  does  not  aver  an  offer  to  place  the 
parties  in  the  position  they  occupied  at  the  time  the  settlement  was 
made. 

Of  these  in  their  order:  First.  This  paragraph  of  the  complaint 
does  not  aver  that  any  notice  of  the  mistake  was  given  appellant  prior 
to  the  time  the  action  was  commenced.  It  is  argued  by  the  appellant's 
counsel  that  he  was  entitled  to  notice  of  the  mistake,  in  order  that  he 
might  have  an  opportunity  of  rectifying  it.    There  is  much  reason  for 

father,  but  in  fact  forced.  Plaintiff  and  defendant  botli  believed  that  both 
notes  and  mortgages  were  genuine.  The  forgeries  having  been  discovered, 
plaintiff  sued  defendant  to  recover  .^Sl.OOO  on  the  ground  thtit  the  same  was 
paid  under  mutual  mistake.  A  majority  of  the  court  held  for  tlie  defendant, 
saying:  "Stripped  of  all  sophistry,  the  naked  case  is  this:  Van  Kiper  obtains 
$.3,000  of  tlie  plaintiff  upon  a  forged  mortgage,  and,  out  of  the  money  so  ob- 
tained, pays  Mrs.  Connnt  the  debt  lie  owes  her,  which  is  evidenced  by  a 
forged  note,  and  secured  by  a  forged  mortgage  upon  the  same  premises  de- 
scribed in  the  mortgage  to  plaintiff".  The  money  is  honestly  her  due,  and 
she  has  an  eiiuitabie  right  to  demand  and  receive  it  of  Edgar  [\'an  Riper]; 
and,  believing  her  securities  to  be  genuine  and  valid,  she  ^akes  the  money,  and 
surrenders  them  up  to  him  to  be  canceled  and  destroyed,  and  in  utter  ignor- 
ance of  the  fraud  peri)etrated  ui)on  the  plaintiff  by  Van  Riper.  It  is  the 
same,  in  fact  and  in  legal  effect,  in  my  opinion,  as  if  the  $3,000  had  been  paid 
direct  to  Van  Riper  by  Walker  and  he  had  taken  the  money  away,  and  out 
of  it  afterwards  paid  the  debt  to  Mrs.  Conant,  and  received  the  note  and 
mortgage  direct  from  her  hands.  In  such  case,  it  seems  to  me,  under  all 
the  authorities,  that  the  fact  that  the  plaintiff  or  his  agent  supposed  his  bond 
and  mortgage  to  be  genuine,  and  the  Conant  mortgage  to  be  a  valid  lien  ufjon 
the  premises,  cuts  no  figure  in  the  case.  *  *  *  pie  must  bear  the  conse- 
quences of  his  own  negligence,  as  the  situation  of  Mrs.  Conant  has  been 
changed  by  his  acts  so  that  in  equity  she  cannot  be  asked  to  return  the  money. 
She  received  it  in  good  faith,  in  satisfaction  of  a  just  and  equitable  claim,  and 
when  it  was  due,  on  honor  and  in  conscience.  Walker  v.  Conant  (1SS7)  G5 
Mich.  197,  198,  31  N.  W.  787,  788.  And  the  authorities  are  uniform  that 
where  the  money  is  received  in  good  faith,  and  in  the  ordinary  course  of  busi- 
ness, and  for  a  valuable  consideration,  it  cannot  be  recovered  back  because 
the  money  was  fraudulently  obtained  of  some  other  person  by  the  payor. 
To  hold  otherwise  would  be  to  put  every  man  who  receives  money  in  the 
due  course  of  his  business  upon  inquiry,  at  his  peril,  as  to  the  manner  in  which 
such  money  was  procured  by  the  payor." 
39  A  portion  of  the  opinion  is  omitted. 


112  BENEFITS   CONFERRED   BY   MISTAKE  (Ch.  2 

holding  that,  where  there  is  a  mutual  mistake,  an  action  will  not  lie 
until  the  party  receiving  the  money  is  put  in  default  by  notice  and  de- 
mand. There  is  no  wrong  in  receiving  the  money,  for  there  is  neither 
breach  of  contract  nor  of  duty.  The  wrong  does  not  arise  until  notice 
of  the  mistake,  and  refusal  or  neglect  to  refund  the  money  received  by 
mistake.  Bare  justice  requires  that  one  who  has  been  paid  money  by 
mistake,  should  have  an  opportunity  of  making  reparation  before  he 
is  vexed  and  harassed  by  litigation.  The  mistake  was  as  much  the 
fault  of  the  one  party  as  of  the  other,  and  both  are  upon  the  same 
footing.  To  destroy  this  equilibrium,  something  ought  to  be  done  by 
him  who  seeks  to  maintain  an  action.    Thompson  v.  Doty,  72  Ind.  336. 

The  second  objection  is  without  force,  for  the  reason  that  it  does  not 
appear  that  the  appellee  received  anything  to  restore.     *     *     * 

Judgment  reversed,*" 


SHARKEY  v.  MANSFIELD. 
(Court  of  Appeals  of  New  York,  1SS2,    90  N.  Y.  227,  43  Am,  Rep.  161.) 

Appeal  from  judgment  of  the  General  Term  of  the  city  court  of 
Brooklyn,  entered  upon  an  order  made  October  1,  1880,  which  af- 
firmed a  judgment  in  favor  of  defendant,  and  affirmed  an  order  de- 
nying a  motion  for  a  new  trial. 

This  action  was  brought  to  recover  a  balance  alleged  to  be  due  for 
work  and  material  in  building  a  stone  pier  in  the  Gowanus  canal. 

Defendant  set  up  as  a  counter-claim  an  over-payment  made  through 
mistake  on  his  part  a's  to  the  quantity  of  the  work  done,  which  mistake 
was  not  discovered  until  a  measurement  was  made  after  the  suit  was 
commenced. 

*o  Accord:  Lawton  v,  Howe  (1861)  14  Wis.  261;  Southwick  v.  First  National 
Bank  of  Memphis  (ISSl)  84  N,  Y.  420 ;  Ford  v,  Brownell  (1S6S)  13  Minn,  184 
(Gil.  174). 

In  Lawton  v,  Howe,  supra,  the  court  said  (page  252) :  "The  complaint  is 
defective  in  not  alleging  a  demand  of  the  money  before  the  commencement  of 
the  action.  This  is  matter  of  substance,  and  the  defect  is  not  waived  by  an- 
s^vering  over.  The  money  was  recei\'ed  by  the  respondent  as  a  payment,  not 
as  a  loan ;  and  it  would  be  most  unjust  and  oppressive  to  subject  him  to  an 
action  before  demand,  or  notice  that  he  is  required  to  refund.  Abbott  v. 
Draper  (1847)  4  Uenio,  53.  In  most  actions  of  this  kind  it  will  be  found  that 
a  demand  was  made  before  they  were  commenced ;  and  every  principle  of  law 
and  justice  seem  to  require  it." 

As  to  what  constitutes  a  sufficient  demand,  see  Bishop  v,  Browp  (1S79)  51 
Vt.  330,  where  Ross,  J.,  said :  "We  do  not  think  the  law  requires  the  use  of 
any  particular  language,  or  any  formal  demand,  before  a  suit  can  be  brought. 
Whatever  language  gives  him  notice  of  the  ovei^ayment,  and  calls  upon  him 
to  rectify  the  mistake,  is  sufficient.  He  does  not  hold  the  money  by  any  con- 
tract, or  right  created,  by  the  party  making  the  overpayment,  which  he  must 
first  terminate  before  a  right  of  action  accrues.  The  money  all  the  time  is 
the  property  of  the  party  making  the  overpayment,  but  having  come  into  the 
possession  of  the  other  party  without  his  fault  or  knowledge,  he  is  entitled  to 
be  notified  of  the  fact  that  he  has  the  money  in  his  possession,  and  to  be  called 
upon  to  rectify  the  mistake  before  he  is  subject  to  a  suit  for  its  recovery." 


Sec.  1)  THE   GENEBAL  DOCTRINE  :    MISTAKE  OF  FACT  113 

Finch,  J.*^  This  is  not  a  case  of  money  paid  under  a  mutual  mis- 
take, where  the  action  of  each  party  was  equally  innocent.  The  mis- 
take was  that  of  the  party  who  paid,  and  not  at  all  that  of  the  one 
who  received  the  amount  in  dispute.  The  plaintiff  was  employed  by  the 
defendant  to  build  a  stone  pier  in  the  Gowanus  canal.  The  precise 
terms  of  the  contract,  and  the  amount  due  for  construction  were  sharp- 
ly litigated  on  the  trial;  but  the  verdict  of  the  jury  establishes  that 
there  was  an  over-payment  mistakenly  made  by  the  defendant.  His 
right  to  recover  back  is  resisted,  mainly  upon  the  ground  that  notice 
was  not  given  and  demand  made  of  tlie  over-payment,  before  setting 
up  the  counter-claim.  Without  stopping  to  consider  whether  the  same 
rule  applies  to  a  defendant  pleading  an  over-payment  by  way  of  coun- 
ter-claim as  that  which  governs  a  plaintiff  suing  for  the  same  cause, 
and  assuming  the  law  to  be  identical  in  both  cases  *^  we  are  still  of 
opinion  that  a  demand  was  not  a  condition  precedent  to  the  defend- 
ant's right  of  action. 

Two  cases  in  this  court  are  relied  upon  by  the  appellant.  Mayor  v. 
Erben,  3  Abb.  Dec.  255 ;  Southwick  v.  First  Nat.  Bank,  84  N.  Y.  420. 
In  the  first  of  these  cases  no  mistake  was  established,  and  that  fact  de- 
cided the  case.  The  court  added,  "where  money  is  paid  under  mutual 
mistake,"  demand,  or  at  least  notice  of  the  error,  must  precede  a  right 
of  recovery.  In  the  latter  case  the  mistake  was  mutual,  and  stress  was 
laid  upon  the  fact  that  the  defendant  "lawfully  and  innocently  received 
the  draft  and  the  money  thereon."  The  ground  of  these  decisions  is 
quite  obvious.  Where  the  mistake  is  mutual  both  parties  are  innocent, 
and  neither  is  in  the  wrong.  The  party  honestly  receiving  the  money 
through  a  common  mistake  owes  no  duty  to  return  it  until  at  least  in- 
formed of  the  error.  It  is  just  that  he  should  have  an  opportunity  to 
correct  the  mistake,  innocently  committed  on  both  sides  before  being 
subjected  to  the  risks  and  expenses  of  a  litigation.  It  was  said  in  Ab- 
bott v.  Draper,  4  Denio,  53,  that  "when  a  man  has  paid  money  as  due 
upon  contract  to  another,  and  there  is  no  mistake,  and  no  fraud  or 
other  wrong  on  the  part  of  the  receiver,  there  is  no  principle  upon 
which  it  can  be  recovered  back  until  after  demand  has  been  made." 
While  this  language  is  not  accurate  as  to  a  mistake  on  the  part  of  a 
receiver,  if  that  was  the  meaning  intended,  the  doctrine  is  clearly 
recognized  that  where  the  receiver  is  guilty  of  fraud  or  other  wrong 
in  taking  the  money,  he  is  not  entitled  to  notice.  The  necessity  of  a 
demand  does  not  therefore  exist  in  a  case  where  the  party  receiving 
the  money,  instead  of  acting  innocently  and  under  an  honest  mistake, 
knows  the  whole  truth  and  consciously  receives  what  does  not  belong 

41  Tbe  statement  of  facts  is  abridged  and  a  portion  of  the  opinion  is  omitted. 

42  In  Stotsenburg  v.  Fordiee  (1895)  142  Ind.  490,  41  N.  E.  313,  810,  which  was 
an  action  on  a  note  to  which  defendant  counterclaimed  for  an  overpayment 
of  interest  thereon  made  by  mutual  mistake,  it  was  held  that  "the  suit  of  the 
appellant  [plaintiff]  excused  the  demand,  if  one  was  necessary." 

TUURS.QUASI  CONT. — 8 


114  BENEFITS  CONFERRED  BY   MISTAKE  (Ch.  2 

to  him,  taking  advantage  of  the  mistake  or  oversight  of  the  other 
party,  and  claiming  to  hold  the  money  thus  obtained  as  his  own.  In 
such  case  he  cannot  assume  the  attitude  of  bailee  or  trustee,  for  he 
holds  the  money  as  his  own,  and  his  duty  to  return  it  arises  at  the  in- 
stant of  the  wrongful  receipt  of  the  over-payment.  He  is  already  in 
the  wrong  and  it  needs  no  request  to  put  him  in  that  position.  Utica 
Bank  v.  Van  Gieson,  18  Johns.  485 ;  Andrews  v.  Artisans'  Bank,  26  N. 
Y.  299 ;  Dill  v.  Wareham,  7  Mete.  (Mass.)  447 ;  Southwick  v.  First  Nat. 
Bank,  84  N.  Y.  430. 

This  case  is  of  that  character.  The  receiver  was  not  innocent.  If 
he  did  not  perpetrate  a  fraud,  at  least  he  committed  a  wrong.  He 
knew  all  the  facts  and  must  be  assumed  to  have  known  tlie  law.  He 
went  to  trial  not  admitting  a  mistake,  but  insisting  that  there  was  none. 
He  charged  a  price  beyond  that  to  which  he  was  entitled,  or  for  quan- 
tities which  were  exaggerated,  and  obtained  the  money  through  the 
inadvertence  and  mistake  of  his  debtor,  who  had  not  measured  the 
work.  He  did  not  come  rightfully  by  the  excess.  He  took  it  as  his 
own  money,  conscious  of  all  the  facts,  and  not  only  claimed  to  hold 
it  as  such,  but  sued  to  recover  more.  The  case  is  not  one  in  which 
he  owed  no  duty  until  apfprised  of  his  mistake,  for  he  made  none.  He 
took  what  was  not  his,  knowing  all  the  facts,  and  at  the  moment  of  its 
receipt  it  was  his  duty  to  return  it.  The  action  for  money  had  and  re- 
ceived could  be  at  once  maintained.     *     *     * 

The  judgment  should  be  affirmed  with  costs.  All  concur  except 
Tracy,  J.,  taking  no  part 

Judgment  affirmed.*' 


BAKER  V.  COURAGE. 

(Court  of  King's  Bench.     [1910]  1  K.  B.  5G.) 

Hamilton,  J.**  The  question  of  law  which  I  have  to  decide  in  this 
case  is  whether  the  Statute  of  Limitations,  which  is  relied  on  by  the' 
plaintiff  in  reply,  is  an  answer  to  the  claim  of  the  de'fendants,  who  seek 
to  set  off  against  the  plaintiff's  claim  a  sum  of  £1000.  which  was  proved 
to  have  been  paid  by  them  to  the  plaintiff  under  a  mistake  of  fact  on 
March  31,  1896.  The  defendants  have  also  counterclaimed  for  the 
same  sum  and  interest.  But  no  distinction  was  drawn  in  argument  be- 
tween capital  and  interest,  and  I  shall  treat  the  case  as  if  the  question 

43  "If  the  mistake  was  induced  by  the  fraud  of  the  party  receiving  the  same, 
and  he  had  knowledge  of  the  overpayment  at  tlie  time,  or  if  he  had  subsequent- 
ly discovered  the  mistake,  the  duty  was  then  cast  upon  him  to  rectify  the  mis- 
take and  repay  tlie  money.  Thereafter  lie  knowingly  has  the  money  of  the 
other  party  to  the  transaction  in  his  hands,  which  he  holds  against  equity  and 
good  conscience,  and  there  is  no  apparent  reason  for  any  demand  for  the  re- 
payment of  the  money  before  suit."     Bishop  v.  Brown  (1S79)  51  Vt.  330. 

See  also  Sheppard  v.  I^ng  (1905)  122  Ga.  607,  50  S.  E.  371 ;  Dill  v.  Ware- 
ham  (1844)  7  Mete.  (Mass.)  438. 

*4  The  statement  of  facts  and  a  portion  of  the  opinion  are  omitted. 


Sec,  1)  THE   GENERAL  DOCTRINE  :    MISTAKE   OF   FACT  115 

turned  only  upon  what  were  the  rights  of  the  parties  at  the  time  the 
money  was  paid. 

For  the  defendants  two  points  were  made — first,  that  the  statute 
did  not  begin  to  run  until  the  discovery  of  the  mistake  by  the  defend- 
ants/"^ and,  secondly,  that  the  statute  did  not  begin  to  run  until  the 
cause  of  action  was  complete,  and  that  the  cause  of  action  was  not 
complete  until  the  defendants  had  given  the  plaintiff  notice  of  the 
discovery  and  demanded  repayment  of  the  money.     *     *     * 

It  remains  to  deal  with  the  defendants'  second  contention,  that 
their  cause  of  action  was  not  complete  until  notice  of  the  mistake  had 
been  given  to  the  plaintiff  and  a  demand  had  been  made.  It  was  said 
that  the  cause  of  action  is  in  the  nature  of  a  breach  by  the  payee  of  a 
duty  to  hand  over  money  which  ex  aequo  et  bono  does  not  belong  to 
him,  but  belongs  to  the  payor,  and  that  there  can  be  no  breach  of  that 
duty  where  the  facts  which  give  rise  to  the  duty  have  not  been  brought 
to  the  payee's  attention.  It  is  clear  that  if  that  is  right  the  payor  might 
postpone  the  notification  of  his  discovery  and  the  making  of  his  de- 
mand for  an  unlimited  time  and  yet  not  have  the  statute  run  against 
him.  But  I  think  that  the  contention  is  fallacious.  It  seems  to  me 
that  the  cause  of  action  in  this  case  was  complete  independently  of  any 
notification  of  the  discovery.  The  mistake  was  one  which  Mr.  Baker 
made  as  well  as  Messrs.  Courage ;  it  was  common  to  both  parties. 
Mr.  Baker  expected  that  the  £1000.  which  the  defendants  had  lent  him 
to  pay  off  the  mortgagee  would  be  repaid  to  them  upon  the  completion 
of  the  purchase ;  he  intended  it  to  be  done  and  took  the  £9000.  in  the 
belief  that  it  had  been  done.  Under  those  circumstances  it  does  not 
appear  to  me  that  notice  of  the  mistake  was  necessary  to  raise  a  duty 
in  Mr.  Baker  to  pay  the  overpayment  back.  It  was  money  had  and 
received  to  the  use  of  the  defendants  because  it  was  money  for  which 
there  was  no  consideration. 

Reliance  was  indeed  placed  by  the  defendants  upon  a  case  of  Free- 
man v.  Jeffries,  L.  R.  4  Ex.  189,  the  decision  in  which  would  bind  me  if 
the  facts  were  the  same,  for  both  Martin  and  Bramwell,  BB.,  held  that 
the  action  there,  which  was  an  action  for  money  paid  by  mistake,  was 
not  maintainable  without  previous  demand.  But  in  that  case  at  the 
time  the  first  instalment  of  the  money  was  paid  neither  the  plaintiff  nor 
the  defendant  made  any  mistake.  The  mistake  was  made  by  the  two 
valuers  who  were  subsequently  employed  to  value  the  farm  which 
was  the  subject-matter  of  the  sale.  It  was  not  until  the  plaintiff  after- 
wards consulted  a  third  valuer  on  his  negotiating  for  the  resale  of  the 
property  that  he  discovered  that  the  former  valuers  had  included  in 
their  valuation  certain  items  which  they  ought  not  to  have  included, 
and  after  this  he  paid  over  the  balance  of  the  money  to  the  defendant 
at  a  time  when  he  knew  of  the  valuers'  mistake  but  the  defendant  did 
not.     It  was  under  those  circumstances  that  Martin  and  Bramwell, 

4  5  The  court  ruled  against  the  defendants  on  the  first  point,  on  the  ground 
that  they  had  "means  of  knowledge"  at  or  soon  after  the  time  of  payment. 


IIG  BENEFITS   CONFERRED   BY   MISTAKE  (Ch.  2 

BB.,  held  that  there  was  no  duty  on  the  defendant  to  repay  the  excess 
vahiation  until  after  notice  of  the  mistake,  which  was  not  his  mistake 
and  of  which  he  was  unaware.  I  think  it  is  clear  that  they  so  decided 
without  reference  to  a  case  in  which  not  only  the  party  paying  paid 
under  a  mistake,  but  also  the  party  receiving  the  money  was  under  a 
mistake  at  the  time  when  he  received  it.  In  my  opinion,  therefore,  the 
case  of  Freeman  v.  Jeffries,  L.  R.  4  Ex.  189,  does  not  support  the  con- 
tention of  the  defendants. 

But  then  it  was  said  that  this  principle  of  the  necessity  of  notice 
and  demand  as  a  condition  of  the  completion  of  the  cause  of  action 
is  of  general  application  and  applies  to  all  cases  in  which  the  defendant 
is  required  to  return  something  which  has  come  innocently  into  his  pos- 
session but  which  he  is  not  entitled  to  keep.  And  reference  was  made 
to  the  case  of  Spackman  v.  Foster,  11  Q.  B.  D.  99,  where  the  action 
was  in  detinue  for  certain  tide  deeds.  The  defendant  there  had  ad- 
vanced money  on  the  deposit  of  the  deeds  without  notice  of  the  want  of 
title  in  the  depositor.  Twenty-three  years  later  the  owner  of  the  deeds 
discovered  their  loss  and  brought  the  action  to  recover  them.  It  was 
held  that  until  the  defendant  was  informed  of  the  plaintiff's  title  his 
possession  of  the  deeds  was  not  adverse  to  the  plaintiff,  with  the  con- 
sequence that  until  then  the  statute  did  not  begin  to  run.  I  do  not  think 
that  that  case  has  any  application  to  the  present  case.  There  must  be 
judgment  for  the  plaintiff. 

Judgment  for  the  plaintiff.*' 

4  6  Accord:  Sturgis  v.  Preston  (1SS3)  134  Mass.  372,  page  117,  infra.  Ruther- 
ford V.  Mclvor  (1852)  21  Ala.  750.  (But  Harold  Bros.  v.  Weaver  [1SS2]  72  Ala. 
373,  contains  a  dictum  that  a  bill  in  equity  to  refonn  a  deed  because  of  mutual 
mistake  will  not  lie  unless  a  demand  be  proved  or  its  omission  excused.) 
Leather  Manufacturers'  Bank  v.  Merchants'  Bank  (1SS8)  128  U.  S.  26,  9  Sup. 
Ct.  3,  32  L.  Ed.  342. 

In  the  case  last  cited — an  action  to  recover  the  amount  of  a  cheek  paid  to  one 
presenting  it  with  a  forged  indorsement  of  the  payee's  name — Gray,  J.,  said: 
"One  who,  by  presenting  forged  paper  to  a  bank,  procures  the  payment  of  the 
amount  thereof  to  him,  even  if  he  makes  no  express  warranty,  in  law  repre- 
sents that  the  paper  is  genuine,  and,  if  the  payment  is  made  in  ignorance  of 
the  forgery,  is  liable  to  an  action  by  the  bank  to  recover  back  the  money  which, 
in  equity  and  good  conscience,  has  never  ceased  to  be  its  property.  It  is  not 
a  case  in  which  a  consideration,  which  has  once  existed,  fails  by  subsequent 
election  or  other  act  of  either  party,  or  of  a  third  person ;  but  there  is  never, 
at  any  stage  of  the  transaction,  any  consideration  for  the  payment.  [Citations 
omitted.]  Whenever  money  is  paid  upon  the  representation  of  the  receiver 
that  he  has  either  a  certain  title  in  property  transferred  in  consideration  of 
the  payment,  or  a  certain  authority  to  receive  the  money  paid,  when  in  fact 
he  has  no  such  title  or  authority,  then,  although  there  be  no  fraud  or  inten- 
tional misrepresentation  on  his  part,  yet  there  is  no  consideration  fcfr  the 
payment,  and  the  money  remains,  in  equity  and  good  conscience,  the  property 
of  the  payor,  and  may  be  recovered  back  by  him,  without  any  previous  de- 
mand, as  money  had  and  received  to  his  use.  His  right  of  action  accrues,  and 
the  statute  of  limitations  begins  to  run,  immediately  upon  the  payment." 

A  special  rule  obtains  in  Vermont:  "When  money  is  paid  by  mistake,  a  de- 
mand is  sometimes  necessary,  sometimes  not.  When  the  payor  is  not  in  fault, 
and  the  payee  receives  the  money  in  his  own  wrong,  no  demand  is  necessary." 
Varuum  v.  Highgate  (1S92)  65  Vt.  416,  26  Atl.  628,  page  218,  infra. 


Sec.  1)  THE   GENERAL  DOCTRINE :    MISTAKE  OF  FACT  117 

STURGIS  V.  PRESTON. 

(Supreme  Judicial  Court  of  Massachusetts,  1883.     134  Mass.  372.) 

CoLBURN,  J.  In  this  case,  the  plaintiff  contended,  and  offered  to 
prove,  that  in  the  year  18/1  he  bargained  with  the  defendant  for  a 
lot  of  land,  for  a  certain  sum  a  square  foot ;  that  the  defendant  stated 
the  number  of  square  feet  in  the  lot ;  that  the  plaintiff  relied  wholly 
upon  the  defendant's  statement,  and  had  no  reason  to  believe  or  sus- 
pect that  there  was  any  error  in  said  statement;  that  he  thereupon 
paid  for  the  land  accordingly,  and  took  a  deed  thereof ;  that  there  was 
not  the  number  of  square  feet  of  land  in  said  lot  that  the  defendant 
had  represented ;  that  he  did  not  discover  the  deficiency  until  the  year 
1880,  a  short  time  before  this  action  was  brought,  when  he  was  pre- 
paring to  build  upon  the  lot;  that  immediately  upon  the  discovery  of 
the  mistake,  he  notified  the  defendant  thereof,  and  demanded  repay- 
ment of  the  sum  so  overpaid,  and  brought  this  action  to  recover  it. 
The  plaintiff  disclaimed  all  charges  of  fraud  or  fraudulent  con- 
cealment on  the  part  of  the  defendant. 

One  of  the  counts  in  the  plaintiff's  declaration  was  for  money  had 
and  received.  The  defendant  relied,  as  one  defence  to  the  action,  upon 
the  statute  of  limitations. 

The  plaintiff  contended  that  an  action  for  money  had  and  received 
has  always  been  treated,  at  common  law,  as  being  founded  on  equity, 
and  that  the  decision  in  this  case,  whatever  it  ought  to  be,  should  be 
the  same,  whether  it  should  be  considered  a  decision  at  common  law 
or  in  equity;  and  argued  that,  as  in  equity,  in  cases  of  mistake,  the 
statute  of  limitations  does  not  begin  to  run  until  the  discovery  of  the 
mistake,  this  action  is  not  barred  by  that  statute. 

The  answer  to  this  argument  is,  that,  although  an  action  for  money 
had  and  received,  in  its  spirit  and  object,  resembles  a  suit  in  equity,  it 
is  still  an  action  at  law,  within  the  statute  of  limitations;  and,  as  all 
charges  of  fraudulent  concealment  are  disclaimed,  it  is  not  within  any 
exception  to  the  statute.    Gen.  St.  1860,  c.  155,  §§  1,  12. 

The  Commissioners  on  the  Revised  Statutes,  in  their  note  on  chapter 
120,  §  11,  say:  "In  many  cases  of  implied  assumpsits,  and  other  suits 
on  contracts,  the  cause  of  action  may  remain  for  a  long  time  unknown 
to  the  plaintiff ;  but  unless  that  knowledge  was  fraudulently  concealed 
from  him,  it  was  never  supposed  that  he  could  bring  his  action  after 
the  expiration  of  six  years."  See  also  Adams  v.  Ipswich,  116  Mass. 
570;  Bishop  v.  Little,  3  Greenl.  (Me.)  405;  Bree  v.  Holbech,  Doug. 
630;  Banning  on  Limitations  of  Actions,  21.  Indeed,  under  the  facts 
in  the  case  at  bar,  it  would  seem  that,  even  in  a  suit  in  equity,  the 
plaintiff's  claim  would  be  barred.  Farnam  v.  Brooks,  9  Pick.  212, 
245 ;  but  we  have  no  occasion  to  decide  this  point. 

The  plaintiff   further  contended  that  his   right  of  action  did  not 


118  BENEFITS   CONFERRED   BY   MISTAKE  (Ch.  2 

arise  until  after  demand,  which  was  not  made  until  1880,  and  that, 
for  this  reason,  this  action  is  not  barred  by  the  statute  of  limitations. 

We  are  of  opinion  that  the  plaintiff's  cause  of  action  arose  imme- 
diately upon  the  payment  of  the  money,  and  that  no  demand  was  neces- 
sary. If  the  plaintiff  should  sustain  his  offer  of  proof,  the  defendant 
held,  and  claimed  as  hfs  own,  from  the  moment  it  was  paid  to  him, 
money  which  in  equity  and  good  conscience  he  ought  to  have  imme- 
diately repaid  to  the  plaintiff'.  Dill  v.  Wareham,  7  Mete,  438 ;  Earle 
V.  Bickford,  6  Allen,  549,  83  Am.  Dec.  651 ;  Utica  Bank  v.  Van  Gieson, 
18  Johns.  (N.  Y.)  485;  Hawley  v.  Sage,  15  Conn.  52. 

This  case  differs  widely  from  those  in  which  the  defendant  is  in  the 
rightful  possession  of  money,  making  no  claim  to  it  as  his  own,  but 
ready  to  pay  it  over  to  the  rightful  owner;  in  which  it  is  held  that 
no  right  of  action  arises,  and  that  the  statute  does  not  begin  to  run  until 
after  a  demand  upon  him  by  the  party  entitled  to  the  money,  and  a 
refusal  to  pay  it  over  to  the  rightful  claimant.  French  v.  Merrill,  132 
Mass.  525;  Jones  v.  McDermott,  114  Mass.  400.  Judgment  for  tlie 
defendant.* '^ 

4  7  Time  of  Accrual  of  Cause  of  Action  fob  Money  Paid  by  Mistake. — • 
In  accord  with  the  rule  laid  down  in  the  principal  case — that  in  the  absence 
of  a  fraudulent  concealment  by  defendant  the  statute  of  limitations  begins  to 
run  at  the  time  of  the  payment,  although  the  mistake  was  not  discovered  until 
some  time  afterwards — see  Bree  v.  Holbech  (17S1)  2  Douglass,  654;  Baker  v. 
Courage  [19101  1  K.  B.  56,  semble;  Richardson  v.  Bales  (1809)  66  Ark.  452,  51 
S.  W.  321 ;  Maxwell  v.  Walsh  (1903)  117  Ga,  467,  43  S.  E.  704,  semble;  Schultz 
V  Board  of  Commissionei-s  of  Cass  Countv  (1SS3)  95  Ind.  323;  Brown  v.  Edes 
(1S53)  37  Me.  318;  Ely  v.  Norton  (1S22)  6  N.  J.  Law,  187;  State  Hospital  for 
the  Insane  v.  Philadelphia  County  (1903)  205  Pa.  336,  54  Atl.  1032. 

A  fraudulent  concealment  by  defendant  takes  the  case  out  of  the  statute  of 
limitations.  Manufacturers'  National  Bank  v.  Perry  (1887)  144  Mass.  313,  11 
N.  E.  81. 

In  some  jurisdictions  it  is  expressly  provided  in  the  statute  of  limitations 
that  the  cause  of  action  shall  not  accrue  until  the  mistake  is  discovered,  but 
siuch  statutes  are  generally  construed  to  mean  that  the  statute  shall  run  from 
the  time  when  by  reasonable  diligence  the  claimant  ought  to  have  discovered 
the  mistake.  Shnin  v.  Sresovicb  (1894)  104  Cal.  402,  38  Pac.  51;  West  v.  Fi-y 
(1907)  134  Iowa,  675,  112  N.  W.  184,  11  L.  II.  A.  (N.  S.)  1191;  German  Security 
Bank  v.  Columbia  Finance  &  Trust  Co.  (Ky.  1905)  85  S.  W.  701;  Peacock  v. 
Barnes  (1906)  142  N.  C.  215,  55  S.  E.  99. 

This  result  has  been  reached  in  Texas  without  the  aid  of  a  special  statutory 
provision,  the  court  holding  that,  since  the  action  to  recover  money  paid  by 
mistake  is  based  upon  equitable  principles,  the  equitable  doctrine  should  apply 
and  the  statute  should  not  begin  to  run  until  the  plaintiffs'  discovery  of  the 
mistake  (Emerson  v.  Navarro  [18681  '^1  Tex.  334.  98  Am.  Dec.  534);  or  until 
the  time  when,  by  the  exercise  of  reasonable  diligence,  plaintiff  should  have 
discovered  the  mistake  (Standford  v.  P'iuks  [1907]  45  Tex.  Civ.  App.  30,  99  S.  W. 
449). 

This  Is  the  usual  rule  in  equity.  Brooksbank  v.  Smith  (1S36)  2  Y.  &  C.  Ex. 
58;  Ainsfield  v.  More  (1890)  30  Neb.  385,  402,  46  N.  W.  828;  Hall  v.  Graham 
(1911)  112  Va.  560,  72  S.  E.  105,  Ann.  Cas.  1913B,  1257;  Gould  v.  Emerson 
(1893)  160  Mass.  438,  35  N.  E.  1065,  39  Am.  St,  Rep.  501.  ("Where  a  mistake 
in  paying  money  is  to  be  corrected  by  a  court  of  equity,  the  statute  of  limita- 
tions does  not  begin  to  run  until  the  time  when  the  mistake  was  discovered, 
or  at  any  rate  till  the  time  when  by  the  use  of  due  diligence  it  ought  to  have 
been  discovered.") 

The  above  cited  cases  almost  uniformly  disregard  the  underlying  question 
as  to  whether  a  demand  is  necessary  to  perfect  the  plaintiff's  right  to  bring 


Sec.  2)  SPECIFIC  APPLICATIONS   OF  THE    DOCTRINE  119 

SECTION  2.— SPECIFIC  APPLICATIONS  OF  THE  DOCTRINE 
I.  Mistake  as  to  Existence  of  a  Contract  Between  the  Parties 


TURNER  V.  WEBSTER. 

(Supreme  Court  of  Kansas,  ISSO.     24  Kan.  38,  36  Am.  Rep.  251.) 

Error  from  Montgomery  district  court. 

Action  brought  by  Webster  against  Turner  and  another,  partners, 
to  recover  for  services  rendered  the  defendants.  Trial  at  the  January 
term,  1879,  of  the  district  court,  and  verdict  and  judgment  for  plain- 
tiff.    The  defendants  brings  the  case  to  this  court. 

Brewer,  J.  In  an  action  commenced  by  plaintiffs  in  error,  an  at- 
tachment was  issued,  placed  in  the  hands  of  the  sheriff,  and  by  him 
levied  upon  certain  mill  property.  Pending  the  attachment  proceed- 
ings, the  sheriff,  under  direction  of  plaintiffs  in  error,  employed  de- 
fendant in  error  to  watch  the  property ;  and  this  action  was  brought 
by  defendant  in  error,  plaintiff  below,  to  recover  for  such  services. 
That  the  sheriff  was  authorized  by  plaintiffs  in  error  to  employ  de- 
fendant in  error,  and  that  the  latter  performed  the  services,  are  con- 
ceded facts.  The  dispute  is  as  to  the  compensation.  Webster  claims 
that  the  contract  price  was  three  dollars  per  day,  and  that  it  was  worth 
that  amount,  while  Turner  &  Otis  say  that  they  authorized  the  sheriff 
to  contract  for  only  one  dollar  and  a  half  a  day,  and  the  sheriff  says 
that  that  was  all  he  promised  to  pay.  The  misunderstanding  seems  to 
have  arisen  in  this  way :  After  the  attachment.  Turner  &  Otis  re- 
quested the  sheriff  to  find  some  one  to  guard  the  mill.  Meeting  Web- 
ster, he  asked  him  what  he  would  undertake  the  job  for.  He  replied, 
one  dollar  and  a  half  a  day,  and  nights  the  same.  The  sheriff  under- 
stood him  to  say  and  mean,  one  dollar  and  a  half  for  each  day  of  twen- 

action  for  money  paid  by  mistake.  We  may  have,  therefore,  the  inconsistent 
result,  in  several  jurisdictions  (e.  g.,  Indiana),  that  while  plaintiff  cannot  sue 
to  recover  money  paid  by  mistake  until  he  has  tirst  niado  a  demand  tor  the 
same,  nevertheless,  despite  his  ignorance  that  the  mistake  has  been  made,  his 
right  to  sue  is  barred  by  expiration  of  the  statutory  period  after  the  time  of 
payment,  even  though  he  has  never  perfected  that  right  by  making  a  demand. 

In  Wyckoff  v.  Curtis  (1894)  7  Misc.  Rep.  444,  27  N.  Y.  Supp.  1012,  this  point 
was  raised,  and  the  court  held  that,  since  a  demand  was  necessary  in  order 
to  perfect  plaintiff's  right  to  recover  money  paid  under  mutual  mistake,  the 
statute  of  limitations  did  not  begin  to  run  until  such  demand  had  been  made. 

Interest. — "The  general  rule  is  that  in  all  cases  where  the  money  of  another 
is  received  or  acquired  by  mistake  merely,  without  fraud,  interest  does  not 
run  upon  it  until  the  party  in  whose  possession  it  is,  is  put  in  default  by  a. 
demand  by  the  party  to  whom  it  is  justly  due,  in  which  case,  if  the  money  be 
retained  after  demand,  interest  begins  to  run."  Sibley  v.  County  of  Pine 
(1SS3)  31  Minn.  201,  17  N.  W.  337 ;  Leach  v.  Vining  (1892)  04  Ilun,  032,  18  N. 
Y.  Supp.  822 ;  Talbot  v.  National  Bank  of  the  Commonwealth  (1880)  129  Mass. 
€7,  37  Am.  Rep.  302. 


120  BENEFITS   CONFERRED   BY   MISTAKE  .  (Ch.  2 

ty-four  hours,  while  plaintiff  meant  that  amount  for  a  day  of  twelve 
hours,  and  the  same  for  the  night-time,  or  three  dollars  for  every 
twenty-four  hours.  The  sheriff  reported  the  offer  to  Turner  &  Otis  as 
he  understood  it,  and  tliey,  after  some  hesitation,  told  him  to  accept 
the  offer  and  employ  Webster,  Without  further  words  as  to  the  price, 
the  sheriff  gave  the  key  of  the  mill  to  Webster,  and  told  him  to  go 
ahead. 

Now,  the  contention  of  plaintiffs  in  error  is  that  the  case  turns  on 
the  law  of  agency;  that  they  never  personally  employed  Webster; 
that  the  sheriff  was  only  a  special  agent  with  limited  powers,  only  au- 
thorized to  bind  them  by  a  contract  to  tlie  amount  of  one  dollar  and 
fifty  cents  per  day  of  twenty- four  hours ;  that  Webster  is  chargeable 
with  notice  of  the  extent  of  the  sheriff's  authority,  and  can  enforce 
the  contract  as  against  the  plaintiffs  in  error  to  the  extent  only  of 
such  authority.  For  any  contract  beyond  that  amount,  the  special 
agent  binds  himself  alone,  and  not  the  principal.  On  the  other  hand, 
the  defendant  in  error  contends  that,  where  services  are  contracted  for 
and  rendered,  and  no  price  stipulated,  the  law  awards  reasonable  com- 
pensation therefor,  and  that,  where  there  is  a  misunderstanding  as  to 
the  price,  the  one  party  understanding  it  at  one  sum  and  the  otlier  at 
a  different,  there  is  no  stipulation  as  to  the  price,  and  that  it  makes  no 
difference  whether  tlie  contract  be  made  through  an  agent  or  with  the 
principal  directly.  In  the  case  at  bar,  he  contends  that  it  is  immaterial 
that  the  conversation  and  misunderstanding  were  with  the  sheriff,— 
the  agent, — and  that  the  rule  is  just  the  same  as  though  the  talk  and 
misunderstanding  had  been  with  Turner  &  Otis  personally. 

We  think  the  case  rests  upon  the  propositions  advanced  by  the  de- 
fendant in  error.  It  will  not  be  questioned  that,  where  the  minds  of 
two  contracting  parties  do  not  come  together  upon  the  matter  of  price 
or  compensation,  but  do  upon  all  other  matters  of  the  contract,  and 
the  contract  is  thereupon  performed,  the  law  awards  a  reasonable 
price  or  compensation.  Thus,  where  shingles  were  sold,  and  delivered, 
at  $3.25,  but  there  was  a  dispute  as  to  whether  the  $3.25  was  for  a 
bunch  or  for  a  thousand,  it  was  ruled  that,  unless  both  parties  had  un- 
derstandingly  assented  to  one  of  those  views,  there  was  no  special  con- 
tract as  to  price.  Greene  v,  Bateman,  2  Woodb,  &  M,  359,  Fed.  Cas. 
No.  5,762.  It  is  said  by  Parsons,  in  his  work  on  Contracts,  (volume 
1,  p.  389,)  that  "there  is  no  contract  unless  the  parties  thereto  assent; 
and  they  must  assent  to  the  same  thing,  in  the  same  sense."  Here, 
Webster  never  assented  to  a  contract  to  work  for  $1.50  a  day.  He 
agreed  to  do  a  certain  work,  and  did  it;  but  his  understanding  was 
that  he  was  to  receive  $3  per  day.  Turner  &  Otis  employed  him  to 
do  that  work,  and  knew  that  he  did  it;  but  their  understanding  was 
that  they  were  to  pay  but  $1.50  a  day.  In  other  words,  the  minds  of 
the  parties  met  upon  everything  but  the  compensation.  As  to  that, 
there  was  no  aggregatio  mentium.  What,  then,  should  result?  Should 
he  receive  notliing,  because  there  was  no  mutual  assent  to  the  com- 


Sec.  2)  SPECIFIC  APPLICATIONS   OF  THE    DOCTRINE  121 

pensation?  That  were  manifest  injustice.  Should  his  understanding 
bind  both  parties?  That  were  a  wrong  to  them.  Should  theirs  con- 
trol? That  were  an  equal  wrong  to  him.  The  law,  discarding  both, 
says  a  reasonable  compensation  must  be  paid.  So  that  if  the  negotiation 
had  been  between  the  parties  directly,  and  this  misunderstanding  had 
arisen,  the  rule  of  reasonable  compensation  would  unquestionably  have 
obtained.  Now,  how  does  the  law  of  agency  interfere?  The  proposi- 
tion of  law  advanced  by  counsel  for  plaintiff  in  error,  that  a  special 
agent  binds  his  principal  to  the  extent  only  of  the  authority  given,  and 
himself  by  any  promise  in  excess,  is  clear.  But  the  agent  made  no 
promise  in  excess  of  his  authority.  He  promised  that  which  he  was 
authorized  to  promise.  Because  the  other  party  misunderstood  the  ex- 
tent of  the  promise,  is  surely  no  reason  for  holding  the  agent  bound 
for  more  than  he  did  in  fact  promise.  The  agent  has  rights  as  well 
as  the  principal.  The  work  is  not  done  for  his  benefit.  He  has  dis- 
charged his  agency  in  good  faith,  and  to  the  best  of  his  ability.  Why 
should  he  be  mulcted  in  any  sum  on  account  of  the  misunderstanding 
of  the  party  with  whom  he  contracted?  If  compensation  were  given 
on  the  basis  of  his  promise,  then,  if  his  promise  was  in  excess  of  his 
authority,  he  should  be  responsible  for  the  excess ;  but  where  the 
promise  is  ignored,  and  compensation  given  on  the  basis  of  value  alone, 
he  should  not  be  charged  with  the  excess  of  such  value  above  his  au- 
thority. An  agent  is  responsible  for  good  faith.  That  is  not  ques- 
tioned. He  does  not  insure,  either  to  his  principal  or  the  opposite 
party.  Acting  in  good  faith,  and  to  the  best  of  his  ability,  we  can  see 
no  reason  for  making  him  responsible  for  any  mere  misunderstand- 
ing. Justice  is  done  to  all  parties  by  ignoring  any  promise  or  under- 
standing as  to  compensation,  and  giving  to  the  laborer  reasonable  com- 
pensation for  the  work  done,  and  requiring  the  party  receiving  the 
benefit  of  such  work  to  pay  a  just  and  reasonable  price  tlierefor. 

The  case  was  submitted  to  the  jury  upon  this  basis,  and  while  the 
instruction  asked  by  plaintiffs  in  error,  and  refused,  was  unquestion- 
ably good  law  in  the  abstract,  and  while  some  criticism  might  fairly 
be  placed  upon  one  of  the  instructions  given,  and  upon  the  answers  of 
the  jury  to  two  special  questions,  we  think  the  main  question  was 
fairly  presented,  and  that  no  error  appears  justifying  a  reversal  of 
the  judgment,  and  it  will  be  affirmed.     All  the  Justices  concurring.*^ 

48  In  Vickery  v.  Ritchie  (1909)  202  Mass.  247,  88  N.  E.  8.35,  26  L.  R.  A.  (N.  S.) 
810,  Knowlton,  C.  J.,  said  :  '  Tliis  is  an  action  to  recover  a  linlance  of  $10,407.16 
alleged  to  be  due  tlie  plaintiff  as  a  contractor,  for  tlie  construction  of  a  Turkish 
bath  house  on  land  of  the  defendant.  The  parties  sijrned  duplicate  contracts 
in  writing,  covering  the  work.  At  the  time  when  ,the  plaintiff  signed  both 
copies  of  the  contract,  the  defendant's  signature  was  attached,  and  the  contract 
price  therein  named  was  ?33,721,  When  the  defendant  signed  theju  the  con- 
tract price  stated  in  each  was  $2.'>,2O0.  Until  the  building  was  completed,  the 
plaintiff  held  a  contract  under  which  he  was  to  receive  the  larger  sum,  while 
the  defendant  held  a  contract  for  the  same  work,  under  which  he  was  to  pay 
only  the  smaller  sum.  This  resulted  from  the  fraud  of  the  architect  who  drew 
the  contracts,  and  did  all  the  business  and  made  all  the  payments  for  the  de- 


122  BENEFITS  CONFERRED  BY   MISTAKE  (Ch.  2 

STONG  V.  LANE. 
(Supreme  Court  of  Minnesota,  1896.    66  Minn.  94,  C8  N.  W.  765.) 

Appeal  by  defendant  from  an  order  of  the  district  court  for  Hen- 
nepin county,  Smith,  J.,  denying  a  motion  for  a  new  trial,  after  a 
verdict  in  favor  of  plaintiff  for  $104.08. 

Mitchell,  J.  While  the  amount  in  controversy  is  small,  the  prin- 
ciple involved  is  important.  The  facts  are  practically  undisputed.  The 
plaintiff  being  desirous  of  purchasing  a  lot  as  a  site  for  a  dwelling, 
a  mutual  acquaintance  of  the  parties  (but  for  whose  acts  defendant 
was  in  no  way  responsible)  pointed  out  to  plaintiff  a  lot  which  he  said 
defendant  had  for  sale.  The  lot  thus  pointed  out  fronted  east  on 
Third  avenue  south,  being  the  second  lot  north  from  Franklin  avenue, 
in  Minneapolis.  The  party  was  mistaken.  The  lot  which  defendant 
had  for  sale  (as  agent  for  the  owner)  was  the  one  directly  opposite 
on  the  other  side  of  Third  avenue,  being  the  side  "Judge  Jones'  house 
is  on."  This  lot  fronted  west.  It  was  also  the  second  lot  north  from 
Franklin  avenue,  but,  as  already  stated,  on  the  opposite  side  of  Third 
avenue  from  the  one  pointed  out  to  plaintiff.  Thereupon  plaintiff  went 
to  see  defendant.  The  precise  words  by  which  he  opened  negotiations 
do  not  clearly  appear,  but  their  substance  was  that  plaintiff  either  asked 
defendant  if  he  had  for  sale  a  lot  on  Third  avenue  south,  or  stated 
that  a  lot  had  been  pointed  out  to  him  by  this  mutual  acquaintance 

fend  ant  The  contrncts  were  on  type\vritten  sheets,  and  it  is  siipposed  that 
the  ariliitect  accomplished  the  fraud  by  changing  the  sheets  on  which  the  price 
was  written,  before  the  signing  by  the  plaintiff,  and  before  the  delivery  to 
the  defendant.  The  parties  did  not  discover  the  discrepancy  between  the  two 
writings  until  after  the  building  was  substantially  completed.  Each  of  them 
acted  honestly  and  in  good  faith,  trusting  the  statements  of  the  architect. 
*  *  *  The  plaintiff  and  defendant  were  niistal<en  in  supposing  that  they 
had  made  a  binding  contract  for  the  construction  of  this  building.  Their 
minds  never  met  in  any  agreement  about  tiie  price.  The  labor  and  materials 
were  furnished  at  the  defendant's  request  and  for  the  defendant's  benefit. 
From  tills  alone  the  law  would  imply  a  contract  on  the  part  of  the  defendant 
to  pay  for  them.  The  fact  that  the  parties  supposed  the  price  was  fixed  by  a 
contract,  when  in  fact  there  was  no  contract,  does  not  prevent  this  implication, 
but  leaves  it  as  a  natural  result  of  their  relations.  Both  parties  understood 
and  agreed  that  the  work  should  be  paid  for,  and  both  paities  thought  that 
they  had  agreed  upon  the  price.  Their  mutual  mistake  in  this  particular  left 
them  with  no  express  contract  by  which  their  rights  and  liabilities  could  be 
determined.  The  law  implies  an  obligation  to  pay  for  what  has  been  done 
and  furnished  under  such  circumstances,  and  the  defendant,  upon  whose  prop- 
erty the  work  was  done,  has  no  right  to  say  that  it  is  not  to  be  paid  for.  The 
doctrine  is  not  applicable  to  work  upon  real  estate  alone.  The  rule  would  be 
tlie  same  if  the  work  and  materials  were  used  in  the  repair  of  a  carriage  or 
of  any  other  article  of  personal  property,  under  a  supposed  contract  with  the 
owner,  if,  through  a  mutual  mistiike  as  to  the  supposed  agreement  upon  the 
price,  the  contract  became  unenforceable."  The  court  further  held  that  the 
measure  of  plaintiff's  recovery  should  be  the  market  value  of  the  labor  and 
materials  furnished  by  him  rather  than  the  increase  in  the  market  value  of  the 
defendant's  land  by  reason  of  the  structure  which  plaintiff  put  upon  it.  For 
a  discussion  of  this  latter  point,  see  Fabian  v.  Wasatch  Orchard  Co.,  page  331, 
infra. 


Sec.  2)  SPECIFIC  APPLICATIONS   OF  THE    DOCTRINE  123 

as  one  tliat  defendant  had  for  sale,  and  inquired  the  price.  The  evi- 
dence is  undisputed  tliat  defendant  told  plaintiff  that  he  had  for  sale 
the  lot  on  Third  avenue  south,  being  the  second  lot  north  of  Franklin 
avenue,  and  "on  the  same  side  of  the  street  Judge  Jones'  house  was 
on."  Nothing  was  said  as  to  whether  the  lot  fronted  east  or  west.  It 
is  undisputed  that  Judge  Jones'  house  is  on  the  east  side  of  Third 
avenue,  and  hence  that  a  lot  on  that  side  would  front  west. 

Without  defendant's  giving  any  furtlier  or  more  definite  description 
of  the  lot,  and  without  plaintiff  making  any  further  inquiry  as  to  its 
description  and  location,  the  plaintiff  proceeded  to  negotiate  as  to 
price.  The  result  was  a  verbal  bargain  of  sale  and  purchase  for  $2,500, 
of  which  plaintiff  paid  down  $100,  the  balance  to  be  paid  when  the 
title  was  ascertained  to  be 'satisfactory,  and  upon  defendant's  procur- 
ing the  proper  deed.  It  appears  that  defendant's  arrangement  with 
the  owner  of  the  lot  was  that  he  was  to  have  as  his  commission  all  he 
sold  the  lot  for  over  $2,400.  But,  without  waiting  for  the  sale  to 
plaintiff  to  be  consummated,  defendant  immediately  went  to  the  owner, 
and  himself  bought  the  lot  for  $2,400,  paying  on  the  purchase  price 
the  $100  which  he  had  received  from  plaintiff,  and  taking  a  deed  run- 
ning directly  to  the  plaintiff.  Very  soon  afterwards,  on  submitting  to 
his  counsel  the  abstract  of  title  furnished  by  the  defendant,  plaintiff 
discovered  that  the  lot  described  in  it  was  not  the  lot  which  had  been 
pointed  out  to  him,  and  which  he  supposed  he  was  buying.  He  then 
informed  the  defendant  of  his  mistake,  and  demanded  back  his  $100, 
which  defendant  refused  to  pay,  but  tendered  a  deed  which  plaintiff 
refused  to  accept,  and  then  brought  this  action  to  recover  back  the 
$100. 

The  evidence  is  undisputed  that  plaintiff  was  laboring  under  an  hon- 
est mistake,  and  supposed  he  was  buying  the  lot  which  had  been 
pointed  out  to  him.  It  is  also  undisputed  that  defendant  was  equally 
honest  in  supposing  he  was  selling  the  lot  on  the  other  side  of  the 
street,  for  which  he  was  agent,  and  that  he  had  no  notice  of  plaintiff's 
mistake.  It  will  be  observed  that  the  description  of  the  two  lots  was 
the  same  except  the  reference  to  "the  side  of  the  street  Judge  Jones' 
house  is  on,"  which  was  applicable  to  the  lot  defendant  had  for  sale, 
but  inapplicable  to  the  one  which  plaintiff  supposed  he  was  buying. 
It  is  familiar  law  that  an  honest  mistake  of  one  of  the  parties  may  be 
good  ground  for  refusing  specific  performance,  and  leaving  the  other 
party  to  his  action  for  damages,  while  it  would  be  no  ground  for  a 
rescission  of  the  contract.  But  the  question  here  is  whether,  upon  the 
facts,  plaintiff  is  entitled  to  a  rescission,  for  that  is,  in  effect,  what  he 
is  asking  for  in  seeking  to  recover  the  $100. 

The  trial  judge  instructed  the  jury  to  the  effect  that,  to  constitute 
a  contract,  the  minds  of  the  parties  must  have  met, — that  is,  as  applied 
to  this  case,  both  parties  must  have  had  in  mind  the  same  lot;  that  if 
one  of  them  referr'id  to  one  lot,  and  the  other  to  another  lot,  then 
there  was  no  meeting  of  the  minds  of  the  parties,  and  hence  no  con- 


124  BENEFITS   CONFERRED   BY   MISTAKE  (Cll.  2 

tract.  Considered  as  a  statement  of  the  general  rule  of  law,  this  might 
be  irxcomplete  and  even  incorrect.  If  there  be  a  meeting  of  the  minds 
upon  the  terms  of  the  contract,  and  those  terms  are  free  from  am- 
biguity, and  there  be  no  fraud  or  misrepresentation,  a  mistake  of  one 
of  the  parties  only,  resting  wholly  in  his  own  mind,  as  to  the  identity 
of  the  subject-matter  of  the  contract,  was  never  held  in  any  well-con- 
sidered case  to  be  a  ground  for  rescission.  If  it  was,  then  all  contracts 
would  rest  on  a  very  uncertain  foundation. 

Undoubtedly,  in  order  to  create  a  contract,  the  minds  of  the  parties 
must  meet  and  agree  upon  the  expressed  terms  of  the  contract.  Thus, 
in  Rupley  v.  Daggett,  74  111.  351,  one  party  offered  to  sell  a  horse  for 
$165 ;  the  other  party  understood  him  to  say  $65.  It  was  held  that 
there  was  no  contract.  To  the  same  head  may  be  referred  cases  where 
a  person,  by  mistake,  enters  into  a  different  kind  of  agreement  from 
that  which  he  intended  to  make  or  supposed  he  was  making ;  as  where 
he  signed  a  bond  supposing  it  to  be  a  mere  petition,  or  which  he  sup- 
posed he  was  signing  merely  as  a  witness.  See  Thoroughgood's  Case, 
2  Coke,  9 ;  Foster  v.  MacKinnon,  L.  R.  4  C.  P.  704.  To  the  same 
general  principle  may  be  referred  those  cases  where,  after  the  parties 
have  apparently  agreed  to  the  terms  of  a  contract,  it  is  made  to  appear 
that  there  was  a  latent  ambiguity  in  an  essential  word,  by  which  one 
of  the  parties  meant  one  thing,  and  the  other  a  different  thing,  the  es- 
sential word  being  applicable  to  both.  See  Raffles  v.  Wichelhaus,  2 
Hurl.  &  C.  906;  Kyle  v.  Kavanagh,  103  Mass.  356,  4  Am.  Rep.  560. 
In  all  these  cases  it  was  held  there  was  no  binding  contract,  because 
the  minds  of  the  parties  had  never  met  on  its  terms.  But  suppose,  in 
Raffles  V.  Wichelhaus,  there  had  been  but  one  ship  named  Peerless, 
and  hence  no  latent  ambiguity  in  the  terms  of  the  contract;  the  de- 
fendant could  not  have  been  released  from  his  contract  merely  because 
he  had  in  mind,  and  supposed  he  was  contracting  with  reference  to, 
another  ship  of  a  different  name.  This  distinction  is  very  clearly 
brought  out  by  both  Mr.  Anson  and  Mr.  Lawson  in  commenting  on 
this  very  case.  Anson,  Cont.  130;  Lawson,  Cont.  §  214.  We  call  at- 
tention to  this  distinction  because  we  do  not  wish  to  be  understood 
as  indorsing  the  erroneous  meaning  not  infrequently  attached  to  the 
legal  maxim  that,  to  create  a  contract,  the  minds  of  the  parties  must 
meet  and  "agree  on  the  same  thing  in  the  same  sense." 

Returning  now  to  the  facts  of  the  present  case,  we  note,  in  tlie  first 
place,  that  this  contract  was  not  enforceable,  because  within  the  statute 
of  frauds.  Defendant  or  his  principal  might  have  repudiated  it,  and 
returned  the  $100.  This  of  itself  is  no  ground  for  rescission,  but  we 
think  it  furnishes  a  reason  why  tlie  rules  of  law  on  the  subject  should 
be  somewhat  liberally  applied  in  favor  of  the  plaintiff. 

Had  the  parties,  in  their  contract,  deliberately  agreed  on  a  formal 
description  of  its  subject-matter,  the  mere  fact  that  plaintiff  was  mis- 
taken as  to  the  lot  to  which  that  description  applied,  and  had  in  mind 
another  lot  of  a  different  description,   would  be  no  ground   for  a 


Sec.  2)  SPECIFIC  APPLICATIONS   OF  THE    DOCTRINE  125 

rescission.  But  in  this  case,  while  the  description  given  by  the  de- 
fendant was  probably  sufficient  in  law  to  identify  the  property,  it  was 
an  unusual  and  exceedingly  informal  one,  and  one  very  liable  to  be 
misunderstood.  It  was  in  one  sense  incomplete,  for  on  its  face  it  did 
not  appear  on  which  side  of  the  street  Judge  Jones'  house  was,  which 
was  the  only  thing  contained  in  the  description  to  distinguish  tlie 
one  lot  from  the  other.  The  other  elements  of  the  description  being 
common  to  both  lots,  and  the  plaintiff  naturally  assuming  that  the 
lot  referred  to  was  the  one  that  had  been  pointed  out  to  him,  the  ref- 
erence to  Judge  Jones'  house  was  not  calculated  to  make  any  particu- 
lar impression  on  his  mind,  as  being  a  material  part  of  the  description. 
Again,  tlie  description  given  by  the  defendant  was  never  expressly 
agreed  to  by  the  plaintiff.  So  far  as  it  could  be  said  to  have  been 
assented  to  at  all,  it  was  only  impliedly  by  plaintiff's  proceeding  to 
negotiate  as  to  price,  which  he  evidently  did  supposing  that  the  lot 
to  which  defendant  alluded  was  the  one  which  had  been  pointed  out 
to  him  on  the  ground.  Therefore,  under  the  particular  facts  of  this 
case,  it  may  be  fairly  said  that  the  minds  of  tlie  parties  never  really 
•met  or  agreed  on  the  words  or  the  terms  of  the  contract,  and  hence 
that  there  never  was  any  binding  agreement. 

The  main  contention  of  the  defendant,  however,  is  that,  on  tlie  faith 
of  the  agreement,  he  had  changed  his  situation  by  paying  over  the 
money  to  the  owner  of  the  lot,  and  therefore  plaintiff  is  estopped  to 
allege  his  mistake  and  claim  a  return  of  his  money.  If  defendant 
had  continued  to  occupy  the  relation  of  agent,  and,  as  such,  paid  over 
to  his  principal  the  $100  as  the  money  of  the  latter,  this  contention 
would  be  correct.  But  this  is  not  what  defendant  did.  He  terminated 
his  agency,  and  converted  himself  into  a  principal,  by  purchasing  the 
lot,  and  applying  the  money,  as  his  own,  in  part  payment  of  the  pur- 
chase price.  We  cannot  see  that,  from  a  legal  standpoint,  he  occupies 
any  different  position  than  he  would  if  he  had  appropriated  tlie  money 
to  any  other  use  of  his  own,  as,  for  example,  buying  a  horse  or  pay- 
ing a  debt. 

We  find  no  prejudicial  error  either  in  the  rulings  of  the  court  on 
the  admission  of  evidence  or  in  his  charge  to  the  jury.  Order  af- 
firmed.*® 


4»  In  Tyra  v.  Cheney  (1915)  129  Minn.  428,  152  N.  W.  835,  plaintiff  submitted 
to  the  defendant  an  oral  bid  to  do  certain  construction  work  for  defendant, 
a  contractor,  for  $4,025.  Defendant  told  plaintiff  to  put  his  bid  in  writing, 
and  thereafter  accepted  it  by  telling  plaintiff  to  go  ahead  with  the  work.  The 
written  bid  was  ?9()3  less  then  the  oral  bid,  plaintilf  having  mistakenly  left 
out  an  item  of  that  amount.  Defendant  (as  the  jury  found)  was  aware  of  the 
plaintiff's  mistake  and  consequently  did  not  accept  the  written  bid  in  good 
faith.  The  court  upheld  a  recovery  to  the  amount  of  the  reasonable  value  of 
the  work  done  less  certain  admitted  payments;  Holt,  J.,  saying:  "If  cognizant 
of  the  mistake  in  plaintiff's  bid.  and  that  the  latter  was  unaware  of  its 
ocairrence,  defendant  had  no  right  to  claim  that,  when  he  told  plaintiff  to  go 
ahead  with  the  work,  their  minds  met  upon  llio  pric"e  mistakenly  stated  in 
the  bid.     Nor  should  plaintiff  be  allowed  to  profit  by  his  own  mistake,  so  as 


126  BENEFITS  CONFERRED   BY  MISTAKE  (Ch.  2 

MARTIN  V.  SITWELL. 

(Court  of  King's  Bench,  1602.     1  Show.  156.) 

Indebitatus  assumpsit  for  £S.  received  by  the  defendant  to  the 
plaintiff's  use,  non  assumpsit  pleaded. 

Upon  evidence  it  appeared  that  one  Barksdale  had  made  a  policy  of 
assurance  upon  account  for  five  pounds  premium  in  the  plaintiff's 
name,  and  that  he  had  paid  the  said  premium  to  the  defendant,  and 
that  Barksdale  had  no  goods  then  on  board,  and  so  the  policy  was 
void,  and  the  money  to  be  returned  by  the  custom  of  merchants. 

At  the  trial  I  urged  these  two  points.  First,  that  the  action  ought 
to  have  been  brought  in  Barksdale's  name,  for  the  money  was  his,  we 
received  it  from  him,  and  if  the  policy  had  been  good  it  would  have 
been  to  his  advantage;  and  upon  no  account  could  it  be  said  to  be 
received  to  Martin's  use,  it  never  being  his  money.  Besides,  here  may 
be  a  great  fraud  upon  all  insurers,  in  this,  that  an  insurance  may  be 
in  another  man's  name,  and  if  a  loss  happen  then  the  insurer  shall  pay, 
for  that  some  cestuy  que  trust  had  goods  on  board :  if  the  ship  ar- 
rive, then  the  nominal  trustee  shall  bring  a  general  indebitatus  for  the 
premium,  as  having  no  goods  on  board. 

To  all  which  Holt,  Chief  Justice,  answered,  that  the  policy  being 
in  Martin's  name,  the  premium  was  paid  in  his  name  and  as  his 
money,  and  he  must  bring  the  action  upon  a  loss,  and  so  upon  avoid- 
ance of  the  poHcy  for  to  recover  back  the  premium.  And  as  to  the  in- 
conveniences it  would  be  the  same  whosoever  was  to  bring  the  action, 
and  therefore  the  insurers  ought  with  caution  to  look  to  that  before- 
hand. 

Then  secondly,  I  urged  that  it  ought  to  have  been  a  special  action 
of  the  case  upon  the  custom  of  merchants,  for  this  money  was  once 
well  paid,  and  then  by  the  custom  it  is  to  be  returned  upon  matter 
happening  ex  post  facto.  I  argued  if  the  first  payment  were  made 
void,  then  the  law  will  construe  it  to  be  to  the  plaintiff's  use,  and 
so  an  indebitatus  assumpsit  will  lie.  But  when  a  special  custom  ap- 
points a  return  of  the  premium,  an  indebitatus  lies  not,  as  for  money 
received  to  the  plaintiff's  use,  but  a  special  action  of  the  case  upon  that 
particular  custom. 

To  which  Holt,  Chief  Justice,  answered  me  with  the  case  adjudged 
by  Wadham  Wyndham,  of  money  deposited  upon  a  wager  concerning 
a  race,  that  the  party  winning  the  race  might  bring  an  indebitatus 
for  money  received  to  his  use,  for  now  by  this  subsequent  matter  it 
is  become  as  such.  And  as  to  our  case  the  money  is  not  only  to  be 
returned  by  the  custom,  but  the  policy  is  made  originally  void,  the 

to  hold  defendant  to  the  oral  bid.  There  was  a  failure  to  enter  a  binding 
contract.  One  cannot  snap  up  an  offer  or  bid  knowing  that  it  was  made  in 
mistake." 


Sec.  2)  SPECIFIC  APrLICATIONS  OF  THE    DOCTRINE  127 

party  for  whose  use  it  was  made  having  no  goods  on  board ;   so  that 
by  this  discovery  the  money  was  received  without  any  reason,  occasion, 
or  consideration,  and  consequently  it  was  originally  received  to  the 
plaintiff's  use. 
And  so  judgment  was  for  the  plaintiff  against  my  client.^" 


JONES  V.  INSURANCE  CO.  OF  NORTH  AMERICA. 

(Supreme  Court  of  Tennessee,  1S91.    90  Tenn.  604,  18  S.  W.  260,  25  Am. 

St.  Rep.  706.) 

Appeal  from  chancery  court,  Knox  county;  H.  R.  Gibson,  Chan- 
cellor. 

Action  by  Jones  &  Abbott  against  the  Insurance  Company  of  North 
America  to  recover  premiums  paid  on  a  policy  issued  by  defendant. 
Judgment  for  defendant,  and  plaintiffs  appeal. 

LuRTON,  J.  The  fire  policy  issued  by  the  defendant  company  on 
lumber  owned  by  the  complainants  contained  in  its  written  part  a 
warranty  that  a  continuous  clear  space  of  150  feet  should  be  main- 
tained between  the  lumber  insured  and  the  saw-mill,  dry-kiln,  or  any 
wood-working  or  manufacturing  establishment,  and  that  said  space 
should  not  be  used  for  the  handling  or  piling  of  lumber  thereon. 
This  warranty  was  untrue  when  made,  and  untrue  when  the  insured 
property  was  burned  by  fire  communicated  from  a  saw-mill  within 
the  space  provided  for.  The  contract  of  insurance  is  a  conditional 
one.  If  no  risk  attaches,  no  premium,  in  the  absence  of  fraud,  is 
earned.  When  the  risk  never  attached,  and  no  risk  was  ever  run,  the 
premium  is  to  be  returned  in  case  it  has  been  paid,  and  the  assured 
was  guilty  of  no  fraud.    May,  Ins.  §  4. 

The  language  of  Lord  Mansfield  in  Tyrie  v.  Fletcher,  Cowp.  668, 
was  that,  when  the  risk  had  not  been  run,  whether  its  not  having  been 
run  was  owing  to  the  fault,  pleasure,  or  will  of  the  insured,  or  to  any 
other  cause,  the  premium  shall  be  returned. 

The  facts  of  this  case  show  no  intentional  fraud  on  the  part  of  the 
assured,  and  his  premiums,  never  having  been  earned,  must  be  re- 
turned. Other  points  in  this  case  were  disposed  of  orally.  Judg- 
ment reversed."^ 

60  In  McCulloch  v.  Royal  Exchange  Assurance  Co.  (1813)  3  Campbell,  406,  it 
was  held  that  it  was  too  late  for  plaintiff  to  sue  for  the  return  of  his  premium 
on  the  ground  that  no  risk  was  mn,  after  the  completion  of  the  voyage.  But 
see  Steinbaciv  v.  Rhinelander  (1803)  3  Johns.  Cas.  (N.  Y.)  269. 

61  "Where  there  is  fraud,  there  is  no  return  of  premium,  but  upon  a  mere 
misrepresentation  without  fraud,  where  the  risk  never  attached,  there  must 
be  a  return  of  premium."  Per  Gibbs,  J.,  in  Feise  v.  Parkinson  (1812)  4  Taun- 
ton, 640. 


128  BENEFITS  CONFERRED  BY   MISTAKE  (Ch.  2 


VAN  DEUSEN  V.  BLUM. 

(Supreme  Judicial  Court  of  Massachusetts,  ISoG.     18  Pick,  229,  29  Am, 

Rep.  5S2.) 

This  was  an  action  of  debt.  The  declaration  contained  two  counts 
upon  a  special  contract  under  seal,  a  third  upon  a  quanturn.  meruit  for 
labor  performed,  and  a  fourth  upon  a  quantum  valebant  for  materials 
furnished.  The  defendant  Blum  was  defaulted;  the  other  defend- 
ant, Thouvenin,  appeared,  and  to  the  two  first  counts  he  pleaded  non 
est  factum,  and  to  the  third  and  fourth,  nil  debet. 

At  the  trial,  before  Morton,  J.,  the  plaintiffs  produced  the  contract, 
purporting  to  be  between  themselves  of  the  one  part,  and  Blum  and 
Thouvenin  of  the  other  part.  Blum  and  Thouvenin  were  partners, 
and  were  so  described  in  'the  contract.  The  plaintiffs  had  duly  exe- 
cuted the  contract,  and  Blum  also  had  executed  it  by  signing  the  com- 
pany name  "J.  C.  Thouvenin  &  Co.,"  and  annexing  a  seal.  There  was 
■  no  evidence  that  he  had  any  authority  to  execute  the  contract  in  behalf 
of  Thouvenin,  or  that  Thouvenin  was  present  at  the  execution  or 
ever  ratified  it. 

The  judge  ruled,  that  the  instrument  could  not  go  in  evidence  to  the 
jury  as  the  deed  of  Thouvenin. 

The  contract  was  for  building  a  dam  by  the  plaintiffs  for  Blum 
and  Thouvenin,  across  the  Housatonic  river;  which  was  a  purpose 
within  the  scope  of  the  partnership  business.  The  plaintiffs  offered  to 
prove  that  they  built  the  dam  and  furnished  the  materials  therefor, 
and  they  claimed  against  Thouvenin,  under  the  third  and  fourth  counts, 
what  their  work  and  materials  were  worth.  Thouvenin  objected  to 
the  admission  of  this  evidence,  and  contended  that  there  being  an 
express  contract  executed  by  the  plaintiffs  and  Blum,  and  that  contract 
being  in  force  and  binding  upon  Blum,  the  plaintiffs'  remedy  was  on 
that  instrument  alone. 

But  the  judge  ruled,  that  the  plaintiffs  might,  notwithstanding  that 
contract,  recover  under  the  third  and  fourth  counts,  upon  an  implied 
promise,  for  all  the  materials  furnished  and  labor  performed  before 
the  dissolution  of  the  partnership. 

Thouvenin  and  Blum  dissolved  partnership  on  the  10th  of  Novem- 
ber, 1832,  and  all  the  partnership  property  was  conveyed  to  Blum,  and 
he  agreed  to  pay  all  the  partnership  debts.  The  dam  was  not  finished 
until  after  the  10th  of  November,  and  for  the  work  done  previously 
to  that  day  the  jury  found  a  verdict  against  Thouvenin. 

The  questions  arising  upon  these  facts  were  reserved  for  the  con- 
sideration of  the  whole  Court, 

Morton,  J.,  delivered  the  opinion  of  the  Court.  Debt,  as  well  as 
assumpsit,  will  lie  on  a  quantum  meruit  or  a  quantum  valebant.  1 
Chit.  PI.  107;  2  Wm.  Saund.  117  b,  note;  Union  Cotton  Manufactory 
V.  Lobdell,  13  Johns.  (N,  Y.)  462,     Hence  these  counts  may  well  be 


Sec.  2)  SPECIFIC  APPLICATIONS   OF  THE    DOCTRINE  129 

joined  with  counts  upon  a  specialty.  Smith  v.  First  Congr.  Meeting- 
house in  Lowell,  8  Pick.  178. 

It  was  long  doubted,  whether  a  man,  who  performed  work  in  con- 
sequence of  a  special  contract,  but  not  in  conformity  to  it,  could  re- 
cover for  the  services  rendered  and  materials  found.  There  are 
many  and  conflicting  authorities  on  the  subject.  They  have  all  been 
carefully  examined  and  compared,  and  the  rule  established  by  our 
Court,  as  we  think,  according  to  the  principles  of  justice  and  the 
weight  of  authority.  He  who  gains  the  labor  and  acquires  the  prop- 
erty of  another,  must  make  reasonable  compensation  for  the  same. 
Hayward  v.  Leonard,  7  Pick.  181,  19  Am.  Dec.  268;  Smith  v.  First 
Congr.  Meetinghouse  in  Lowell,  8  Pick.  178;  Munroe  v.  Perkins,  9 
Pick.  298,  20  Am.  Dec.  475 ;  Brewer  v.  Tyringham,  12  Pick.  547. 

The  general  authority  derived  from  the  relation  of  partnership,  does 
not  empower  one  partner  to  seal  for  the  company  or  to  bind  them  by 
deed.  It  requires  special  power  for  this  purpose.  See  Cady  v.  Shep- 
herd, 11  Pick.  400,  22  Am.  Dec.  379,  and  the  cases  there  cited.  Here 
was  no  evidence  of  any  previous  authority  or  subsequent  ratification. 
The  sealed  instrument  executed  by  one  partner  in  the  name  of  the 
firm,  might  bind  him,  but  could  not  be  obligatory  upon  the  company. 
And  although  the  plaintiffs  might  have  had  a  remedy  upon  the  contract 
against  the  party  who  executed  it,  yet  they  were  not  bound  to  rely 
upon  him  alone. 

The  services  never  were  rendered  either  in  conformity  to  or  under 
such  an  agreement.  The  plaintiffs  undertook  to  execute  a  contract 
between  themselves  and  the  company.  But  there  being  no  such  con- 
tract in  existence,  they  are  left  to  resort  to  their  equitable  claim  for 
their  labor  and  materials.  So  far  as  these  benefited  the  company,  the 
plaintiffs  are  entitled  to  recover  against  them. 

Judgment  on  the  verdict.®^ 

5  2  In  Bond  v.  Aitkin  (1843)  6  Watts  &  S.  (Pa.)  165,  40  Am.  Dec.  550,  the 
plaintiff,  liaving  lent  money  to  a  partnership,  taking  the  sealed  obligation  of 
one  of  the  partners,  sued  both  partners  in  action  of  debt  on  the  instiiiment, 
with  a  count  in  money  lent.  As  to  the  liability  on  the  latter  count  of  the 
partner  who  had  not  signed  the  obligation,  the  court  said :  "On  the  additional 
count,  we  think  the  plaintiff  has  not  shown  a  right  to  recover.  Where  the 
bond  of  one  of  the  partners  is  taken  for  an  antecedent  partnership  debt,  it 
may  be  considered  either  as  payment  and  extinguishment  of  such  debt,  or  only 
a  collateral  security,  according  to  the  nature  of  the  transaction  and  the  cir- 
cumstances attending  it.  Wallace  v.  Fairman  (1S35)  4  Wiitts  (Pa.)  378.  But 
where  there  is  no  antecedent  debt,  but  the  bond  of  one  partner  i.s  tal^en  at  the 
time  money  is  loaned  to  the  partnership,  and  as  the  consideration  for  loan- 
ing the  money,  it  can  hardly  be  treated  as  a  collateral  security.  It  must  be 
considered  as  all  one  transaction,  and  the  bond  as  the  only  security  contemplat- 
ed ;  unless,  perhaps  there  were  strong  and  positive  evidence  to  show  an  ex- 
press agreement  to  the  contrary  by  all  parties.  If  so,  then  in  this  case  the 
bond  was  the  only  debt ;  the  plaintiff",  if  he  recovered  at  all,  must  recover  on 
it,  and  not  on  the  money  counts.  And  as  there  was  no  implied  contract  by 
both,  so  the  express  promise  proved  was  only  by  one ;  and,  therefore,  we  are 
of  opinion  the  charge  of  the  court  below  was  correct,  that  the  plaintiff  could 
not  recover  on  the  additional  count." 
TnuRS.QuAsi  CoNT. — 9 


130  BENEFITS  CONFERRED   BY  MISTAKE  (Ch.  2 

NATIONAL  GRANITE  BANK  v.  TYNDALE. 

(Supreme  Judicial  Court  of  Massachusetts,  1900.     176  Mass.  547,  57  N.  E.  1022, 

51  L.  R.  A.  447.)  . 

Exceptions  from  superior  court,  Norfolk  county. 

The  first  case  was  an  action  at  law  by  the  National  Granite  Bank 
against  one  Tyndale,  administrator,  upon  three  promissory  notes,  each 
in  the  sum  of  $5,000,  executed  by  Isabella  S.  Whicher,  the  defendant's 
intestate,  payable  to  the  order  of  the  intestate's  husband  and  indorsed 
by  him.  The  declaration  contained  counts  upon  the  notes  and  also 
counts  for  money  loaned  to  the  defendant's  intestate,  for  money  had 
and  received,  etc.  The  second  case  was  a  bill  in  equity  between  the 
same  parties  and  involving  the  same  transaction.  From  a  judgment 
in  favor  of  defendant,  and  a  decree  in  favor  of  defendant  sustaining 
a  demurrer  to  the  bill,  complainant  excepts. 

Morton,  J.^^  These  two  cases  were  argued  together.  The  first  is 
an  action  at  law,  and  was  before  this  court  on  the  defendant's  excep- 
tions in  Bank  v.  Whicher,  173  Mass.  517,  53  N.  E.  1004,  and  it  was 
there  held  that,  the  maker  of  the  notes  being  a  married  woman,  and  the 
notes  being  made  payable  to  the  order  of  her  husband,  and  indorsed 
by  him,  no  action  could  be  maintained  on  them  against  her.^*  It  comes 
before  us  now  on  exceptions  by  the  plaintiff  to  a  ruling  by  the  pre- 
siding justice  that  upon  the  plaintiff's  offer  of  proof  an  action  could 
not  be  maintained  against  the  administrator  on  the  common  counts 
for  money  lent,  or  for  money  had  and  received,  and  to  a  ruling  that 
the  plaintiff  was  not  entitled  to  avail  itself  of  the  facts  set  up  in  the  bill 
in  equity  in  answer  to  the  defense  that  the  notes  were  void  because 
made  payable  to  the  husband  of  defendant's  intestate.  The  plaintiff 
offered  to  show  that  on  December  29,  1891,  it  lent  the  defendant's  in- 
testate $15,000,  and  that  at  the  same  time  the  defendant's  intestate 
gave  the  plaintiff  three  promissory  notes  for  $15,000,  payable  to  the 
order  of  her  husband,  and  indorsed  by  him  and  by  two  other  parties ; 
that  subsequently  the  defendant's  intestate  repudiated  the  notes  on 
the  ground  that,  having  been  made  payable  to  her  husband,  and  in- 
dorsed by  him,  they  were  void;  and  that  the  plaintiff  had  expressly 
refused  to  make  the  loan  to  the  other  parties,  or  on  their  individual 
credit,  and  made  the  loan  only  to  defendant's  intestate,  and  on  her 
credit. 

We  think  that  the  ruling  was  erroneous.  The  offer  was  to  show 
that  the  loan  was  made  to  defendant's  intestate,  and  on  her  credit. 
This  was  consistent  with  the  form  of  the  note,  of  which  she  was  the 

5  3  The  statement  of  facts  is  abridged  and  a  portion  of  the  opinion  is 
omitted. 

54  "Tliat  such  a  note  is  void  at  common  law,  which  law  has  not  been  changed 
by  our  statutes  relating  to  married  women,  is  too  plain  for  argument."  Na- 
tional Granite  Bank  v.  Whicher  (1899)  173  Mass.  517,  53  N.  E.  1004,  73  Am.  St. 
Kep.  317. 


Sec.  2)  SPECIFIC  APPLICATIONS   OF  THE    DOCTRINE  131 

maker,  and  tlte  other  parties  were,  as  between  them  and  the  bank,  the 
indorsers.  Lewis  v.  Monahan,  173  Mass.  122,  53  N.  E.  150.  The  fact 
that  the  note  was  declared  void  as  to  her  did  not  destroy  the  original 
transaction,  or  avoid  the  debt  created  by  the  loan  to  her.  Walker  v. 
Mayo,  143  Mass.  42,  8  N.  E.  873;  Sutton  v.  Toomer,  7  Barn.  &  C. 
416.  If  the  other  parties  to  the  note  had  been  co-makers  with  her, 
and  the  loan  had  been  made  to  all  of  them,  and  the  note  had  after- 
wards been  avoided  by  one  of  them,  there  would  seem  to  be  no  doubt 
that  the  payee  could  have  maintained  an  action  against  all  of  them  for 
money  had  and  received,  or  money  lent.  Leonard  v.  Society,  2  Cush. 
462.  In  such  a  case,  the  note  having  been  received  on  the  faith  that  it 
was  the  valid  note  of  all,  the  payee  "would  be  warranted  in  treating  it 
as  a  nullity,  and  resorting  to  the  original  contract."  Leonard  v.  So- 
ciety, supra.  A  fortiori,  ought  that  to  be  the  case  when  the  liability  of 
the  other  parties  is,  as  here,  collateral,  and  the  action  is  brought  against 
the  maker  alone.  It  is  true  that  the  plaintiff  could  have  treated  the  note 
as  valid  as  against  the  other  parties,  and  tliat,  if  the  plaintiff  had 
sued  and  recovered  against  the  last  indorser,  for  instance,  the  husband 
might  have  been  estopped  in  an  action  against  him  by  a  subsequent 
indorser  to  deny  the  validity  of  the  note, ,  Roby  v.  Phelon,  118  Mass. 
541.  But  this  action  is  not  against  the  indorsers,  and  the  counts  that 
we  are  considering  are  not  upon  the  note.  The  only  use  of  the  note 
which  the  plaintiff  can  make  in  relying  on  those  counts  is  as  evidence 
tending  to  show  the  terms  on  which  the  loan  was  made  to  defend- 
ant's intestate.  It  cannot  recover  upon  the  note  and  the  common 
counts  both,  and,  so  far  as  it  relies  upon  the  common  counts,  it  must 
be  taken  to  rely  upon  the  original  contract  with  the  maker  of  the  note, 
and  therefore  to  have  elected  to  treat  the  note  as  a  nulhty.  In  such 
a  case  the  plaintiff  would  have  no  ground  of  recovery  against  parties 
whose  only  liability  as  between  them  and  the  bank  is  that  of  indorsers 
on  the  note. 

The  plaintiff  contendr,  however,  that  it  is  entitled  to  be  relieved  in 
equity  against  the  defense  that  the  notes  are  void  because  made  pay- 
able by  the  defendant's  intestate  to  her  husband.  Its  contention  is,  in 
substance,  that  the  defendant's  intestate,  having  received  and  kept  the 
proceeds  of  the  notes,  is  estopped  in  equity  to  deny  their  validity.  But 
a  party  cannot  be  relieved  in  equity,  we  think,  by  reason  of  an  estoppel 
any  more  than  at  law,  from  the  effect  of  a  positive  rule  of 
law.     *     *     * 

The  result  is  that  in  the  action  at  law  we  think  the  exceptions  should 
be  sustained,  and  that  in  the  bill  in  equity  the  decree  sustaining  the  de- 
murrer and  dismissing  the  bill  with  costs  should  be  affirmed.  So  or- 
dered.^" 


5B  "We  think  there  was  sufficient  evidence  to  sustain  the  count  In  the  dec- 
laration for  money  had  and  received.  It  appeared  that  the  plaintiff  boui:;ht  of 
a  person  who  had  been  acting  as  an  agent  of  the  defendant  to  sell  its  tickets 


132  BENEFITS  CONFERRED  BY  MISTAKE  (Ch.  2 

KELLEY  V.  LINDSEY. 

(Supreme  Judicial  Court  of  Massachusetts,  1856.     7  Gray,  287.) 

Action  of  contract  on  a  check  payable  to  the  plaintiff  and  signed 
"Benjamin  Lindsey,  by  George  C.  Coffin."  There  were  also  counts 
for  money  lent,  and  for  money  had  and  received. 

At  the  trial  in  the  court  of  common  pleas,  before  Morris,  ].,  the  evi- 
dence tended  to  show  that  Coffin  obtained  the  money  of  the  plaintiff 
for  the  use  of  the  defendant,  and  that  it  was  applied  for  the  benefit 
of  the  defendant  in  his  business;  that  Coffin  was,  at  the  time  the 
check  was  drawn  and  dated,  the  financial  agent  and  confidential  clerk 
of  the  defendant,  and  had  charge  of  his  money  affairs,  while  the  de- 
fendant was  engaged  personally  as  editor  of  a  newspaper.  It  did  not 
appear  that  specific  authority  had  been  given  by  the  defendant  to  Cof- 
fin to  borrow  from  the  plaintiff,  but  there  was  considerable  evidence 
going  to  show  an  implied  authority  in  Coffin  to  borrow  money  for  use 
in  defendant's  business. 

The  trial  judge  charged  that  it  was  for  the  jury  to  determine,  from 
the  whole  evidence  in  the  case,  whether  Coffin  had  such  authority  from 
the  defendant.  The  court  further  instructed  the  jury  "that  if  they 
were  not  satisfied  that  Coffin  had  authority  to  borrow  the  money  which 
the  plaintiff  sought  to  recover  in  this  action,  yet  if  they  were  satisfied 
by  the  evidence  that  said  money  was  expended  by  Coffin  in  the  defend- 
ant's business,  or  in  payment  of  his  debts,  and  that  the  defendant  had 
the  use  and  benefit  of  it,  the  plaintiff  was  entitled  to  recover  the  same 
upon  the  count  for  money  had  and  received,  subject  to  the  legal  dedub- 
tion  for  any  forfeiture  incurred  by  the  usury." 

The  jury  found  a  verdict  for  the  plaintiff,  and  the  defendant  al- 
leged exceptions. 

Dewey,  J.^''  *  •  *  'pj.^g  remaining  instruction  was  objectiona- 
ble, and  should  not  have  been  given.  If  Coffin  had  no  authority  to 
borrow  money  on  account  of  the  defendant,  to  expend  in  his  busi- 
ness and  to  pay  his  debts,  the  money  advanced  for  that  purpose, 
though  so  applied,  created  no  debt  against  the  defendant.  No  one  can 
thus  make  himself  a  creditor  of  another  by  the  unsolicited  payment 
of  his  debts;  and  it  is  not  enough  to  create  a  liability,  that  the  de- 
fendant had  the  benefit  of  the  money,  by  reason  of  its  being  expended 

certain  documents  purporting  to  be  passage  tickets  of  the  defendant  So  far 
as  appears,  there  was  nothing  in  tlie  circumstances  when  tlie  tickets  were 
bought  to  notify  the  plaintiff  that  the  defendant  had  revoked  the  agency  of 
the  seller,  if  it  liad  done  so,  and  tickets  exactly  like  those  in  question  had 
been  accepted  as  valid  by  the  defendant.  Having  paid  his  money  to  the  agent 
of  the  defendant  for  valid  ticlvets,  he  is  entitled  to  recover  it  from  the  com- 
pany, since  the  company  have  repudiated  the  act  of  their  agent  and  have  no- 
tified the  plaintiff  that  the  tickets  are  worthless."  Simmoneli  v.  White  Star 
Line  (R.  I.  ]!)06)  G6  Atl.  83G. 

5  0  The  statement  of  facts  is  rewritten  and  only  that  portion  of  the  opinion 
which  discusses  the  last  instruction  is  printed. 


Sec.  2)  SPECIFIC  APPLICATIONS   OF  THE    DOCTRINE  133 

in  his  business  or  in  the  payment  of  his  debts.  There  must  have  been 
shown  some  authority  to  make  such  advance  or  payment  of  money, 
proceeding  from  the  defendant,  in  addition  to  the  mere  fact  of  its  being 
appHed  for  his  benefit,  in  order  to  charge  him  with  the  same  in  a  suit 
at  law. 

For  this  reason,  the  court  are  of  opinion  that  the  verdict  mtist  be 
set  aside  and  a  new  trial  had.^^ 


FIRST  NAT.  BANK  OF  LAS  VEGAS  v.  OBERNE. 

(Supreme  Court  of  Illinois,  1886.     121  111.  25,  7  N.  E.  85.) 

Appeal  from  the  Appellate  Court  for  the  First  District;  heard  in 
that  court  on  appeal  from  the  Circuit  Court  of  Cook  county ;  John  G. 
Rogers,  Judge. 

Sheldon,  J.    This  was  an  action  brought  by  the  First  National  Bank 
of  Las  Vegas  against  George  Oberne  and  Henry  N.  Hosick  upon  the 
following  guaranty  of  a  promissory  note,  viz. : 
"$1,000.  Las  Vegas,  N.  Mexico,  October  15,  1882. 

"Six  months  after  date  I  promise  to  pay  to  the  order  of  Oberne, 
Hosick  &  Co.  one  thousand  dollars,  at  Las  Vegas,  New  Mexico,  at  the 
rate  of  one  per  cent,  per  month  from  date  till  paid.     Value  received. 

"Edwin  A.  Prentice. 

"Pay  to  the  First  National  Bank,  Las  Vegas,  or  order. 

"For  and  in  consideration  of  the  sum  of  ten  cents,  the  receipt 
whereof  is  hereby  acknowledged,  we  hereby  guaranty  the  payment  of 
the  within  note,  waiving  demand  and  notice  of  non-payment  and  pro- 
test, and  agree  to  pay  all  costs  and  expenses  paid  or  incurred  in  col- 
lecting same,  Oberne,  Hosick  &  Co., 

"By  Thomas  Davis." 

The  declaration  contained  also  the  common  counts.  The  issue 
formed  under  the  plea  of  the  general  issue,  verified  by  affidavit,  was 
tried  by  the  court  without  a  jury,  and  found  for  the  defendants,  and, 
after  overruling  a  motion  for  a  new  trial,  judgment  was  entered  ac- 
cordingly, which  was  affirmed  on  appeal  to  the  appellate  court  for  the 
First  district,  and  the  plaintiff  appealed  to  this  court. 

Oberne,  Hosick  &  Co.,  the  defendants,  were  a  firni  in  Chicago, 
dealing  in  wool,  hides,  and  pelts,  etc.,  who  bought  them  at  various 

6  7  "If  Cutting  borrowed  money  of  the  plaintiff  on  the  credit  of  Mrs.  Post, 
without  her  authority,  and  paid  a  part  of  it  to  Holmes  &  Ross  [creditors  of 
Mrs.  Post]  without  her  knowledge,  it  could  give  the  plaintiff  no  right  of  ac- 
tion against  her.  She  could  not  be  made  the  debtor  of  the  plaintiff  without 
her  consent.  If  Cutting  borrowed  money  in  her  name,  Without  authority, 
and  she  had  knowledge  of  the  fact,  and  that  the  money  went  into  her  busines,s, 
and  she  had  the  benefit  of  it,  she  thereby  adopts  the  transaction,  and  makes 
it  her  own."     Spooner  v.  Thompson  (1876)  48  Vt.  259. 

In  Newell  v.  Hadley  (1910)  20(J  Mass.  3.S5,  .343,  92  N.  E.  507,  29  L.  R  A.  (N. 
S.)  908,  Loring,  J.,  suggests  that  relief  might  be  had  in  equity  in  such,  a  case 
as  Kelley  v.  Lindsey. 


134  BENEFITS   CONFERRED   BY   MISTAKE  (Ch.  2 

places,  Las  Vegas  among  others,  had  them  shipped  to  Chicago,  and 
sold  them  there.  Thomas  Davis  was  their  agent  at  Las  Vegas.  The 
course  of  business  was  for  Davis,  when  he  made  a  purchase,  or  an- 
ticipated making  one,  to  draw  drafts  on  Oberne,  Hosick  &  Co.,  the 
amounts  of  which  were  placed  to  their  credit  in  open  account  on  the 
books  of  the  bank,  and  were  checked  against  by  Davis,  who  signed 
the  firm  name  of  Oberne,  Hosick  &  Co.  to  the  checks  by  Thomas  Davis. 
On  October  23,  1882,  the  account  of  Oberne,  Hosick  &  Co.  was  over- 
drawn $16.45.  On  that  day  Davis  applied  to  the  bank  for  it  to  pur- 
chase the  note  in  question.  The  cashier  wrote  on  tlie  back  of  the 
note  the  indorsement  and  guaranty  which  appear,  and  Davis  signed 
the  name  of  the  firm  by  himself  thereunder.  The  note  was  then  taken 
by  the  bank,  and  the  amount  of  it  placed  to  the  credit  of  Oberne, 
Hosick  &  Co.  on  the  books  of  the  bank.  This  amount,  between  Oc- 
tober 23d  and  November  20th  following,  was  all  checked  out  by  Davis 
upon  checks  signed:  "Oberne,  Hosick  &  Co.  Per  Thomas  Davis." 
There  were  no  other  credits  in  the  account  of  Oberne,  Hosick  & 
Co.  during  that  period  from  October  23  to  November  20,  or  until 
December  1,  1882.  Two  of  the  checks  thus  drawn,  one  on  October 
24th,  the  other  on  October  26th,  for  the  respective  sums  of  $500  and 
$60.27,  were  given  to  Weil  &  Graaf  for  hides  and  pelts  bought  of 
them  by  Thomas  Davis,  as  agent  of  Oberne,  Hosick  &  Co.  The 
note  of  Prentice  appears  to  have  been  given  for  a  loan  of  money  to 
him  by  Davis. 

The  foregoing  facts  are  undisputed,  and  upon  them  we  are  of 
opinion  there  was  a  right  of  recovery,  at  least  to  the  extent  of  $560.27, 
the  amount  of  the  proceeds  of  the  note  which  was  paid  to  Weil  & 
Graaf.  Admitting  that  there  was  no  authority  in  Davis  to  bind  Oberne, 
Hosick  &  Co.  by  the  indorsement  and  guaranty  of  the  note,  yet  it 
appears  that  in  consequence  of  such  indorsement  and  guaranty  there 
was  placed  to  their  credit  on  the  books  of  the  bank  the  proceeds  of 
the  note,  $1,000,  and  that  $560.27  of  such  proceeds  was  actually 
paid  out  by  the  bank  to  Weil  &  Graaf  upon  checks  given  by  the  de- 
fendants by  their  agent  in  payment  for  hides  and  pelts  bought  of  Weil 
&  Graaf  by  the  defendants ;  so  that  defendants  actually  got  that  much 
of  the  proceeds  for  the  guaranteed  note.  Now,  they  cannot  be  per- 
mitted to  repudiate  a  contract  made  in  their  name  by  an  assumed 
agent,  on  the  ground  of  a  want  of  authority  in  the  agent  to  make 
it,  without  restoring  the  money  received  by  them  under  the  contract, 
and  as  the  result  of  the  agent's  act.  See  Harding  v.  Parshall,  56 
111.  219.  It  was  for  the  consideration  of  the  supposed  guaranty  by 
defendants,  of  the  note,  that  tlie  bank  paid  over  to'  them  the  money, 
and  manifestly  the  bank  should  have  either  one  or  the  other,  the 
consideration  or  the  money ;  and  if  defendants  deny  the  consideration 
to  the  bank,  they  should  repay  to  it  the  money  they  have  received. 

It  is  urged  by  appellant  that  as  Davis  was  authorized  to  give  checks 


Sec.  2)  SPECIFIC  APPLICATIONS   OF  THE    DOCTRINE  135 

upon  the  bank  in  the  name  of  Oberne,  Hosick  &  Co.,  and  as  the 
entire  proceeds  of  the  note  were  drawn  out  on  checks  thus  given,  the 
whole  amount  should  be  taken  as  received  by  the  defendants,  or  that 
the  bank  had  the  right  to  consider  it  as  so  received.  Though  the 
checks  were  drawn  in  the  name  of  Oberne,  Hosick  &  Co,  by  Thomas 
Davis,  they  might  have  been  so  drawn  wrongfully,  and  the  money  not 
have  gone  to  the  use  of  defendants,  in  the  same  manner  as  the  trans- 
action of  the  note  was  without  authority.  And  it  was  only  funds 
in  the  bank,  of  Oberne,  Hosick  &  Co.,  that  Davis  was  authorized  to 
check  upon,  and  the  proceeds  of  the  note  were  not  their  funds  if 
they  repudiated  the  transfer  and  guaranty  of  the  note.  Otherwise  tlian 
as  to  the  amount  shown  to  have  actually  gone  to  the  use  of  defendants 
in  payment  for  goods  purchased  by  them,  viz.,  $560.27,  we  cannot  say 
the  judgment  was  wrong. 

The  judgments  of  the  appellate  and  circuit  courts  are  reversed,  and 
the  cause  remanded  to  the  circuit  court.    Judgment  reversed. 

MuLKEY,  C.  J.    I  do  not  concur  in  this  opinion.^ ^ 


MERCHANTS'  NATIONAL  BANK  OF  PEORIA  v.  NICHOLS 

&  SHEPARD  CO. 

(Supreme  Court  of  Illinois,  1906.     223  111.  41,  79  N.  E.  38,  7  L.  R.  A.  [N.  S.]  752.) 

Cartwright,  J."®  Appellant  brought  this  suit  in  the  circuit  court 
of  Peoria  county  against  appellee,  a  corporation  of  Battle  Creek,  Mich- 
igan, engaged  in  the  manufacture  and  sale  of  threshing  machinery  at 

68  In  Bannatyne  v.  Maclver,  [1906]  1  K.  B.  108,  the  defendant's  agent,  in  ex- 
cess of  his  authority,  borrowed  money  from  plaintiff  (who  was  ignorant  of  the 
agent's  want  of  authority),  and  expended  it  in  payment  of  liabilities  of  de- 
fendant. The  court  allowed  a  recovery,  Collins,  M.  R.,  saying:  "Some  money 
has  found  its  way  into  tlie  coffers  of  the  firm  in  this  sense — that  it  was  cred- 
ited to  th^r  account  at  the  bank,  and  has  been  applied  on  their  behalf  in 
payment  of  their  liabilities.  Whether  or  not  it  could  be  recovered  at  common 
law  by  the  lender  it  is  not  nec-essary  to  decide,  though  I  should  think  that  it 
could  not ;  but  we  have  to  apply  the  general  law,  legal  and  equitable,  and  it 
appears  to  me  that,  so  far  as  the  money  can  be  shewn  to  have  been  applied 
for  the  benefit  of  the  defendants,  in  paying  claims  for  Avhich  they  were  legally 
liable,  it  can  be  recovered  upon  equitable  grounds." 

In  Reversion  Fund  &  Insurance  Co.  v.  Maison  Conway,  [1913]  1  K.  B.  364, 
the  facts  were  the  same  as  in  Bannatyne  v.  Maclver  except  that  at  the  time  of 
making  the  loan  the  plaintiff  was  aware  of  the  agent's  lack  of  authority.  The 
Court;  of  Appeal  (reversing  the  judgment  below)  by  Buckley,  L.  J.,  and  Ken- 
nedy, L.  J.  (Vaughan  Williams,  L.  J.,  dissenting),  allowed  a  recovery. 

See  59  University  of  Pennsylvania  Law  Review,  245. 

Certain  special  rules  applicable  to  unauthorized  loans  to  municipal  corpora- 
tions are  discussed  in  a  note  in  4  Columbia  Law  Review,  07.  See,  also,  17 
Harvard  Law  Review,  343. 

For  a  discussion  of  the  conflicting  views  as  to  the  effect  of  ultra  vires 
agreements  of  private  corporations  and  the  quasi  contractual  rights  of  recov- 
ery for  benefits  conferred  thereunder,  see  2  Maclien  on  Corporations,  ch. 
XVI ;    Richards,  Cases  on  Corporations,  3G9  to  380. 

5  9  Portions  of  the  opinion  (dealing  with  matters  of  agency  and  estoppel)  are 
omitted. 


136  BENEFITS  CONFERRED  BY  MISTAKE  (Ch.  2 

that  place,  to  recover  $1,023.60,  the  aggregate  of  24  checks,  which  cre- 
ated an  overdraft  of  that  amount  in  appellee's  bank  account.  The 
declaration  was  in  the  common  counts  with  an  itemized  account  show- 
ing the  amount  of  each  check,  and  the  plea  was  the  general  issue.  The 
cause  was  tried  by  the  court  witliout  a  jury,  and  there  was  a  finding 
and  judgment  for  the  appellee,  which  was  affirmed  by  the  Appellate 
Court  for  the  Second  District.  From  the  judgment  of  the  Appellate 
Court  this  appeal  was  prosecuted. 

The  checks  which  created  the  overdraft  were  signed  with  the  name 
of  the  defendant,  "by  W.  H.  Harte,  Manager,"  and  Harte  was  defend- 
ant's agent  at  Peoria.  At  the  trial  the  plaintiff  presented  to  the  court 
propositions  to  be  held  as  the  law,  to  the  effect :  First,  that  the  agency 
was  of  such  a  nature  that  the  agent  had  lawful  authority  to  borrow 
from  the  plaintiff  the  money  in  question  by  drawing  the  checks  in  the 
name  of  the  defendant;  second,  that  the  defendant  was  estopped  to 
deny  its  liability  for  the  amount  of  the  overdraft  on  account  of  its 
failure  to  perform  an  alleged  duty  to  the  plaintiff  to  examine  its  ac- 
count as  shown  by  the  pass  book,  which  had  been  written  up  and  bal- 
anced monthly  while  the  account  was  running,  and  to  examine  the  re- 
turned checks  and  to  give  notice  to  plaintiff  that  overdrafts  were  not 
authorized;  third,  that  plaintiff  was  entitled  to  recover  on  the  ground 
the  defendant  had  the  benefit  of  the  overdraft.  The  propositions  were 
refused,  and  inconsistent  propositions  requested  by  the  defendant  were 
held  to  be  the  law. 

The  facts  were  not  in  dispute,  and  were  as  follows :  The  defendant 
sold  its  threshing  machinery  and  threshing  outfits  through  11  agencies, 
established  in  various  states,  for  different  districts.  One  of  these 
agencies  for  Illinois  and  a  part  of  Missouri  was  located  at  Blooming- 
ton,  and  afterward  at  Peoria.  Harte  was  placed  in  charge  of  the 
agency  at  Bloomington  in  1900,  and  remained  there  until  January,  1902, 
when  the  agency  was  transferred  to  Peoria,  and  Harte  then  opened 
a  banking  account  with  the  plaintiff,  with  defendant's  knowledge,  in 
its  name.  The  account  continued  until  the  discharge  of  Harte,  in  June, 
1904.  Harte  had  entire  charge  of  the  agency  at  Peoria,  rented  a 
building  for  the  business,  employed  assistants,  fixed  and  paid  their 
salaries,  had  charge  of  about  15  traveling  salesmen  and  100  local 
agents  for  the  sale  of  machinery,  paid  the  bills  for  all  expenses  in- 
curred in  the  business  in  his  district,  and  made  sales,  collections,  and 
settlements  therein.  He  was  authorized  to  collect  any  money  due  tlie 
defendant  in  his  territory,  and  he  received  checks  and  drafts  from 
customers  payable  to  defendant,  which  he  indorsed  in  its  name  and 
deposited  the  proceeds  in  plaintiff's  bank.  The  funds  with  which  he 
carried  on  the  business  were  received  from  sales  and  settlements  or 
were  sent  to  him  by  defendant  from  Battle  Creek.  Written  contracts 
for  sale  of  threshing  outfits  were  made  by  him  in  defendant's  name 
and  were  to  be  submitted  to  the  defendant  for  approval.  They  were 
generally  so  submitted  and  were  always  approved,  but  sometimes  sales 


Sec.  2)  SPECIFIC  APPLICATIONS   OF  THE    DOCTRINE  137 

were  made  without  submitting  them,  and  no  objection  was  made.  He 
made  remittances  from  time  to  time  to  the  defendant  by  checks  drawn 
on  its  account  payable  to  its  order.  He  kept  books  showing  the  sales 
of  machinery  and  repairs,  and  notes  and  collections.  He  signed  the 
checks  the  same  as  the  checks  in  controversy  in  this  case,  and  each 
month  the  bank  wrote  up  the  account  on  the  pass  book  and  returned 
the  book,  with  the  canceled  checks,  to  him.  He  kept  it  in  his  office  at 
Peoria,  and  it  was  never  sent  to  Battle  Creek  nor  seen  by  any  of^cer 
of  the  defendant.  In  May,  1902,  he  overdrew  the  account,  and  the 
pass  book,  when  balanced  on  June  30th,  showed  a  charge  of  30  cents 
for  interest.  Overdrafts  occurred  several  times  thereafter,  and  in 
each  case  there  was  a  small  charge  for  interest.  There  was  no  other 
indication  of  an  overdraft  in  the  pass  book,  and  it  showed  balances  to 
defendant's  credit  from  time  to  time.  The  overdrafts  were  all  covered 
by  deposits,  except  fhe  last  one,  created  by  the  24  checks,  which  were 
paid  in  July,  1904.  During  his  agency  Harte  made  monthly  reports 
to  the  defendant  showing  the  cash  received  and  paid  out  in  each  month, 
and  these  statements  always  showed  a  cash  balance  on  hand.  The 
statements  were  generally  false,  and  Harte  had  appropriated  money  of 
the  defendant  from  time  to  time  so  that  he  did  not  have  the  cash  bal- 
ance shown  by  his  statements,  either  in  plaintiff's  bank  or  elsewhere. 
Plaintiff  never  gave  any  notice  to  the  defendant  of  any  overdraft,  and 
the  defendant  never  knew  of  any.  On  June  30,  1904,  Harte  reported 
in  his  monthly  account  a  cash  balance  of  $926.72  which  had  no  ex- 
istence, and  he  drew  on  defendant  for  money  to  pay  current  expenses. 
This  led  to  an  investigation,  and  he  reported  his  shortage  to  the  de- 
fendant, the  total  amount  of  which,  excluding  the  overdraft,  was  $2,- 
225.57.  The  24  checks  were  drawn  by  Harte  in  the  ordinary  course 
of  the  business,  and  the  proceeds  were  paid  for  the  expenses,  of  the 
defendant  in  the  business,  except  four  checks,  aggregating  $95.52, 
which  Harte  received  personally. 

The  payment  of  the  checks  when  there  were  no  funds  of  the  defend- 
ant in  the  bank  constituted  a  loan  of  the  money  paid,  and  defendant 
never  gave  Harte  any  authority  to  borrow  money  on  its  account  by 
*  that  method  or  any  other.  He  was  supplied  by  the  defendant  with  the 
necessary  funds  to  execute  the  duties  imposed  upon  him,  and  the  only 
occasion  for  overdrawing  the  account  was  his  appropriation  of  de- 
fendant's money.  There  is  no  claim  that  the  power  was  expressly 
given,  but  the  argument  is  that  the  power  arose  out  of  the  nature  of 
the  agency,  and  that  plaintiff  had  a  right  to  assume  that  the  power 
existed.  *  *  *  There  is  no  ground  upon  which  it  can  be  said  that 
the  power  existed. 

It  is  next  contended  that  the  defendant  was  estopped  to  deny  its 
liability  to  plaintiff  by  its  failure  to  examine  the  pass  book,  canceled 
checks,  and  check  stubs  in  the  hands  of  Harte  at  Peoria.**"     »     ♦     * 

«o  The  court  concluded  that  the  defendant  was  not  estopped. 


138  BENEFITS  CONFERRED   BY   MISTAKE  (Ch.  2 

The  last  proposition  of  law  contended  for  is  tliat  tlie  defendant  is 
liable  because  the  checks  which  created  the  overdraft  were  given  in 
the  business  of  the  defendant,  with  the  exception  of  $95.52,  which  went 
to  Harte.  In  the  case  of  First  Nat.  Bank  of  Las  Vegas  v.  Oberne, 
121  111.  25,  7  N.  E.  85,  the  principal  was  permitted  to  deny  the  au- 
thority of  the  agent  to  execute  a  guaranty,  but  only  upon  restoring  the 
money  received  as  the  result  of  the  agent's  act;  but  in  this  case  the 
defendant  was  the  loser  to  the  amount  of  Harte's  defalcation  after 
crediting  the  proceeds  of  the  checks.  While  most  of  the  checks  creat- 
ing the  overdraft  were  given  by  him  for  expenses,  they  were,  in  fact, 
to  replace  money  which  he  had  misappropriated.  He  was  short  in  his 
account  to  the  amount  of  $2,225.57,  and  we  do  not  think  that  justice 
required  the  defendant  to  add  to  its  loss  the  amount  sued  for. 

The  rulings  of  the  trial  court  on  the  propositions  submitted  to  it 
were  in  substantial  accord  with  what  we  have  said,  and  the  Appellate 
Court  did  not  err  in  affirming  the  judgment. 

The  judgment  of  the  Appellate  Court  is  affirmed.  Judgment  af- 
firmed. 

Farmer  and  Vickers,  J  J.,  took  no  part  in  the  decision  of  tliis  case.'^^ 


HATHAWAY  v.  DELAWARE  COUNTY. 

(Court  of  Appeals  of  New  York,  1906.     1S5  N.  Y,  368,  78  N.  E.  153,  13  L,  R.  A. 

[N.  S.]  273,  113  Am.  St.  Rep.  909.) 

Appeal  from  a  judgment  of  the  Appellate  Division  of  the  Supreme 
Court  in  the  tliird  judicial  department,  which  reversed  so  much  of  a 
judgment  at  a  Trial  Term  as  directed  judgment  for  the  plaintiffs  on 
the  plaintiffs'  second  cause  of  action  and  granted  a  new  trial  thereon. 

CuLLEN,  C.  J.^^  *  *  *  As  to  the  second  cause  of  action  we 
think  that  the  decision  of  the  Trial  Term  was  correct  and  the  action 
of  the  Appellate  Division  in  reversing  the  judgment  awarded  by  the 
Trial  Term  was  erroneous.    The  facts  on  which  this  claim  was  founded 

61  "Whether  a  person,  under  any  circumstances,  can  be  made  a  debtor  for 
money  borrowed  by  another  for  him  without  authority,  and  appropriated  to 
his  use  Avithout  his  knowledge  or  consent,  need  not  be  considered.  See  Kelley 
V.  Lindsey  (1856)  7  Gray  (Mass.)  287.  No  obligation  on  the  part  of  the  de- 
fendant ought  to  be  implied  in  this  case  because  Reed  was  a  defaulter,  and 
the  money  was  used  to  cover  up  his  defalcation  by  paying  debts  of  the  com- 
pany which  the  money  of  the  company,  if  he  had  not  embezzled  it,  would  have 
been  used  to  pay.  The  only  reasonable  inference  is  that  Reed's  primary  pur- 
pose in  using  the  money  in  this  way  was  to  escape  detection,  and  benefit  him- 
self. Whether  it  was  a  benefit  to  the  company  that  he  was  able  to  obtain  and 
use  money  for  this  purpose  is  necessarily  uncertain.  The  money  was  not  bor- 
rowed bona  fide  for  the  use  of  the  company.  See  Bank  v.  Lowell  (1872)  109 
Mass.  214 ;  Bank  v.  South  Hadley  (1880)  128  Mass.  503.  By  the  terms  of  the 
report,  there  must  be  judgment  for  the  defendant."  Craft  v.  South  Boston 
Railroad  (1889)  150  Mass.  207,  22  N.  E.  920,  5  L.  R.  A.  641. 

But  see  Reid  v.  Rigby  &  Co.,  [1894]  2  Q.  B.  40. 

62  Portions  of  the  opinion  are  omitted. 


Sec.  2)  SPECIFIC   APPLICATIONS   OF   THE    DOCTRINE  139 

are  as  follows:  Prior  to  January  1,  1900,  one  Woodruff  was  the  coun- 
ty treasurer  of  Delaware  county — the  respondent  in  this  action — and 
was  a  defaulter  in  his  trust.  On  that  day  he  was  succeeded  as  county 
treasurer  by  Hugh  Adair.  About  May  1,  1900,  Adair  discovered  that 
Woodruff  was  indebted  to  the  county,  and  demanded  payment  of  the 
debt.  Thereupon  Woodruff  presented  to  the  plaintiffs  what  purported 
to  be  a  note  of  the  county  of  Delaware  and  to  be  executed  by  Hugh 
Adair,  its  treasurer,  under  authority  of  the  board  of  supervisors,  for 
the  sum  of  $5,000  and  interest,  payable  February  1,  1901.  The  signa- 
ture of  Adair  to  this  note  was  forged  by  Woodruff.  Woodruff  had 
dealt  with  the  plaintiffs  during  his  incumbency  of  the  office  of  county 
treasurer,  and  had  borrowed  for  the  county,  on  what  either  were  or 
were  assumed  to  be  its  obligations,  several  sums  of  money.  On  the 
presentation  of  the  forged  note  referred  to  Woodruff  represented  that 
he  was  obtaining  the  loan  for  the  county.  The  plaintiffs  thereupon 
drew  their  check  to  the  "order  of  Hugh  Adair,  county  treasurer  of 
Delaware  County,"  and  delivered  it  to  Woodruff  for  transmission  to 
the  county  treasurer.  Woodruff  turned  the  check  over  to  Adair  on 
account  of  his  personal  indebtedness  and  it  was  received  by  Adair  as 
a  payment  on  that  account,  he  being  ignorant  of  the  means  by  which 
Woodruff  had  obtained  it.  The  money  was  collected  and  went  into 
the  treasury  of  Delaware  county.  The  plaintiffs  on  discovering  the 
forgery  demanded  the  return  of  the  money,  which,  being  refused,  they 
instituted  this  action.     *     *     * 

Plaintiffs  sought  to  recover  this  money  as  paid  under  a  mistake  of 
fact.  The  rule  as  to  such  payments  is  thoroughly  settled  in  this  state. 
"Money  paid  under  a  mistake  of  fact  may  be  recovered  back,  how- 
ever negligent  the  party  paying  may  have  been  in  making  the  mistake, 
unless  the  payment  has  caused  such  a  change  in  the  position  of  the 
other  party  that  it  would  be  unjust  to  require  him  to  refund"  (Nat. 
Bank  of  Commerce  v.  Nat.  Mechanics'  Banking  Ass'n,  55  N.  Y.  211, 
14  Am.  Rep.  232)  and  if  circumstances  exist  which  make  such  recovery 
inequitable,  the  burden  of  proving  that  fact  rests  upon  the  party  re- 
sisting the  payment.  (Mayer  v.  Mayor,  etc.,  of  N.  Y.,  63  N.  Y.  455; 
Phetteplace  v.  Bucklin,  18  R.  I.  297,  27  Atl.  211.)  That  the  plain- 
tiffs paid  their  money  under  a  mistake  of  fact,  to  wit,  that  they  had 
received  a  genuine  obligation  of  the  defendant,  is  unquestioned.  It 
does  not  appear  that  the  defendant's  claim  against  Woodruff'  or  his 
sureties  has  been  in  any  manner  jeopardized  or  impaired. 

On  final  analysis  the  transaction  is  simply  this :  The  plaintiffs  paid 
money  to  the  defendant  as  a  loan.  The  defendant  received  it  as  a  pay- 
ment on  the  debt  of  Woodruff.  Though  the  fault  or  misfortune  which 
led  to  this  mistake  was  the  plaintiffs',  in  failing- to  discover  the  forgery, 
that  no  more  than  negligence  can  bar  their  right  to  recover,  unless  by 
that  payment  the  situation  of  the  defendant  has  been  altered  to  its 
detriment.  Generally  in  actions  of  this  kind  the  mistake  under  which 
money  is  paid  is  a  mutual  one  as  to  the  existence  or  nonexistence  of 


140  BENEFITS   CONFERRED   BY   MISTAKE  (Ch.  2 

a  fact  which  justifies  or  requires  the  payment.    It  is  not  essential,  how- 
ever, that  the  mistake  should  be  of  that  character. 

The  case  at  bar  is  on  all  fours  with  that  of  Mayer  v.  Mayor,  etc., 
of  N.  Y.,  supra.  In  that  case  the  plaintiff  paid  the  city  of  New  York 
an  assessment  for  a  local  improvement  upon  an  adjoining  lot  instead 
of  the  assessment  on  his  own.  The  fault  or  negligence  by  which  the 
payment  was  made  on  the  wrong  lot  was  the  plaintiff's,  yet  it  was  held 
that  he  was  entitled  to  recover  back  the  money  so  paid,  it  not  appear- 
ing that  by  the  payment  the  city  had  lost  its  lien  upon  the  lot,  the  as- 
sessment of  which  had  been  paid.  Judge  Andrews  said:  "The  city  re- 
ceived the  money  upon  a  lawful  demand,  but  from  a  person  who  was 
not  legally  liable  to  pay  it,  and  we  do  not  find  that  the  circumstance 
that  money  paid  by  mistake  is  received  upon  a  valid  claim  in  favor 
of  the  recipient  against  a  third  person  prevents  a  recovery  back,  pro- 
vided the  claim  against  the  party  who  ought  to  pay  it  is  not  thereby 
extinguished  or  its  collection  prevented."  The  case  is  decisive  of  the 
one  before  us,  unless  under  the  facts  some  other  rule  conflicting  with 
or  modifying  the  general  rule  is  applicable  to  this  case. 

The  learned  judge  who  wrote  for  the  Appellate  Division  recognized 
the  principle  that  money  paid  under  a  mistake  of  fact  may  be  recov- 
ered back,  and  would  have  upheld  the  judgment  for  the  plaintififs  had 
he  not  deemed  the  case  controlled  by  the  decision  of  this  court  in 
Goshen  Nat.  Bank  v.  State,  141  N.  Y.  379,  36  N.  E.  316.  That  case 
and  the  earlier  decisions  on  which  it  is  founded  (Justh  v.  Nat.  Bank 
of  Commonwealth,  56  N.  Y.  478;  Stephens  v.  Bd.  of  Education  of 
Brooklyn,"  79  N.  Y.  183,  35  Am.  Rep.  511 ;  Southwick  v.  First  Nat. 
Bank,  84  N.  Y.  420)  proceed  on  the  primary  proposition  that  "money 
has  no  earmarks"  and  that  the  possession  of  money  vests  the  title  in 
the  holder  as  to  third  persons  dealing  with  him  and  receiving  it  in  good 
faith  in  the  due  course  of  business,  and  upon  the  secondary  principle 
that  where  money  is  transferred  by  checks  the  same  rule  obtains  as 
where  payment  is  made  in  coin  or  bills.  In  the  Justh  Case  a  person 
had  obtained  a  loan  from  the  plaintiff  on  altered  and  forged  bonds. 
The  money  was  advanced  by  a  check-  to  the  order  of  the  borrower, 
who  deposited  it  in  the  defendant  bank.  Thereafter  by  a  check  on 
his  deposit  the  forger  paid  the  defendant  a  loan  which  he  had  obtained 
from  it.  In  the  Stephens  Case  one  Gill  obtained  from  the  plaintiflf 
money  on  a  forged  mortgage  and  the  check  was  deposited  in  Gill's 
bank  and  collected.  Thereafter  Gill  paid  the  defendant  a  debt  he  owed 
it  by  a  check  on  his  own  bank.  It  was  held  that  the  plaintiffs  could 
not  recover,  but  it  is  to  be  observed  that  in  each  case  the  plaintiff  in- 
tended to  give  the  money  to  the  borrower,  that  the  check  was  given 
for  the  purpose  of  paying  the  borrower,  and  when  deposited  and  col- 
lected it  was  the  same  as  if  payment  had  been  made  in  the  first  in- 
stance in  money.  The  same  is  true  of  the  checks  given  by  the  bor- 
es This  case  Is  printed  at  pajje  108,  supra. 


Sec.  2)  SPECIFIC  APPLICATIONS   OF  THE    DOCTRINE  14.3 

rowers  to  their  creditors.  When  the  money  was  collected  thereon 
it  was  the  same  as  if  the  original  payments  had  been  made  in  money. 
There  was  not  in  any  respect  a  diversion  of  the  checks.  Each  served 
the  exact  purpose  for  which  it  was  drawn.  The  latest  case  in  this 
court  is  Nassau  Bank  v.  Nat.  Bank  of  Newburgh,  159  N.  Y.  456,  54 
N.  E.  66,  and  is  of  a  similar  character. 

The  crucial  distinction  between  those  cases  and  the  present  one  lies 
here.  There  was  an  earmark  on  the  money  which  the  defendant  re- 
ceived and  the  plaintiffs'  check  was  diverted  in  that,  while  it  was 
given  as  a  loan  to  defendant,  it  was  used  to  pay  Woodruff's  debt.  Had 
the  plaintiffs  given  Woodruff  money  and  the  defendant  received  it  in 
good  faith  without  knowledge  how  it  was  obtained,  doubtless  the  plain- 
tiffs could  not  recover.  I  assume  that  if  they  had  given  a  check  to 
Woodruff's  order  the  money  could  not  be  reclaimed  after  payment 
even  if  plaintiffs  could  have  successfully  resisted  an  action  brought 
on  the  check.  Southwick  v.  First  Nat.  Bank,  supra,  opinion  pages 
434,  435.  But  that  is  not  the  present  case.  The  check  was  drawn  by 
the  plaintiffs  to  the  order  of  the  defendant.  It  imported  on  its  face  that 
the  money  represented  by  it  was  tlie  property  of  the  plaintiffs,  and 
that  they,  not  Woodruff,  were  paying  it  to  the  defendant.  Sims  v. 
U.  S.  Trust  Co.,  103  N.  Y.  472,  9  N.  E.  605 ;  Bristol  Knife  Co.  v. 
Nat.  Bank  of  Hartford,  41  Conn.  421,  19  Am.  Rep.  517.  Woodruff 
had  no  apparent  title  to  the  check.  He  was  merely  tlie  agent  of  the 
plaintiffs  for  the  purpose  of  delivering  it  to  the  defendant.     *     *     * 

The  judgment  appealed  from,  *  *  *  so  far  as  it  reversed  the 
judgment  for  the  plaintiffs  on  the  second  cause  of  action,  should  be 
reversed  and  such  part  of  the  judgment  of  the  trial  court  reinstated; 
neither  party  to  recover  costs  in  the  Appellate  Division  or  in  this  court. 

Judgment  accordingly. 


II.  Mistake  as  to  Title  to  Property  Which  is  the  Subject- 
Matter  oe  a  Contract 

DORSEY  v.  JACKMAN. 
(Supreme  Court  of  Pennsylvania,  1814.     1  Serg.  &  R.  42,  7  Am.  Dec.  611.) 

This  was  a  writ  of  error  to  the  Common  Pleas  of  Washington 
County. 

It  was  an  action  of  assumpsit  for  money  had  and  received,  brought 
by  the  defendant  in  error,  the  plaintiff  below,  against  Dorsey,  to  re- 
cover the  amount  of  the  purchase  money  paid  for  a  tract  of  land,  on 
the  ground  that  the  consideration  had  failed,  the  title  of  the  defend- 
ant proving  to  be  defective. 

It  appeared  in  evidence  on  the  trial,  that  on  the  25th  October,  1796, 
the  defendant  executed  a  writing  by  which  he  agreed  "to  sell  and  con- 
vey to  William  Jackman,  lot  No.  142,  in  Nicholson's  district  depre- 
ciation land,  containing  308  acres,  at  two  dollars  per  acre ;    one-half 


142  BENEFITS   CONFERRED  BY   MISTAKE  (Ch.  2 

now  paid,  the  other  half  at  12  months.  The  conveyance  to  be  made  as 
soon  as  convenient  on  request." 

It  was  admitted  by  the  defendant  that  he  had  received  from  the 
plaintiff  the  whole  amount  of  the  purchase  money,  $608.  It  appeared 
in  evidence  that  the  tract  of  land  in  question  had  been  sold  by  the  com- 
missioners of  Allegheny  county  for  non-payment  of  taxes,  and  pur- 
chased by  the  defendant  for  £115.  The  conmiissioners'  deed  was  dated 
9th  August,  1796.  When  the  plaintiff  called  upon  the  defendant  to 
pay  the  last  instalment  of  the  purchase  money,  he  told  the  defend- 
ant that  he  expected  hn  honest  good  title  according  to  their  agree- 
ment. The  defendant  offered  him  the  commissioners'  deed  with  an 
assignment  on  the  back  of  it.  The  plaintiff  objected  to  this  as  insuffi- 
cient, and  insisted  that  the  defendant  should  give  his  own  deed  to  him 
for  the  land.  The  defendant  refused  to  give  any  other  than  the  as- 
signment. The  plaintiff  received  it,  observing  that  he  had  great  con- 
fidence in  the  defendant,  and  hoped  he  would  not  palm  upon  him  an 
insufficient  deed.  The  deed  of  assignment  was  in  the  following 
words : 

"I  do  for  the  consideration  of  $608,  the  receipt  of  which  I  do  hereby 
acknowledge,  assign  unto  Mr.  William  Jackman,  his  heirs  and  assigns 
for  ever,  the  within-mentioned  tract  of  land. 

"February  1,  1798.  J.  Dorsey.     [L.  S.]" 

Attested  by  two  witnesses. 

The  plaintiff,  Jackman,  shortly  after  the  agreement  of  the  25th 
October,  1796,  took  possession  of  the  land,  and  has  remained  in  pos- 
session ever  since.  Suspecting  the  title  to  be  defective,  he  took  the 
advice  of  counsel  in  the  fall  of  1803,  who  informed  him  that  the  title 
was  worth  nothing;  in  consequence  of  which  discovery,  he  made  in- 
quiry for  the  owner  of  the  land,  who  lived  in  Philadelphia,  and  pur- 
chased it  again  from  him  the  same  year,  at  three  dollars  per  acre. 

The  charge  of  the  Court  was  in  favour  of  the  plaintiff,  and  the 
jury  gave  a  verdict  accordingly  for  $1151.92  the  amount  of  the  sums 
paid  with  interest. 

An  exception  was  taken  to  the  charge  of  the  Court,  and  the  whole 
record  was  femoved  into  this  Court  by  writ  of  error. 

This  cause  was  argued  last  term  before  Yeatks  and  BrackDnridge, 
Justices,  and  another  argument  ordered.  It  was  again  argued  at  this 
term. 

TiLGHMAN,  C.  J.®*  This  is  an  action  for  money  had  and  received, 
brought  by  Jackman,  the  plaintiff  below,  against  Dorsey,  the  defend- 
ant, who  had  sold  and  conveyed  to  the  plaintiff,  a  tract  of  land,  with- 
out warranty  of  any  kind.  The  plaintiff  had  paid  the  purchase  money, 
after  which,  apprehending  the  title  to  be  defective,  and  having  made 
a  second  purchase  from  the  person  in  whom  he  supposed  the  true 

0*  The  statement  of  facts  is  abridged.  The  concurring  opinion  of  Yeates, 
J.,  and  the  dissenting  opinion  of  Braekenridge.  J.,  are  omitted. 


Sec.  2)  SPECIFIC  APPLICATIONS   OF  THE    DOCTRINE  143 

title  to  be  vested,  he  brought  this  action  to  recover  the  money  paid 
on  the  bad  title.  The  president  of  the  Court  of  Common  Pleas  of 
Washington  county,  charged  the  jury  in  favour  of  the  plaintiff,  where- 
upon the  counsel  for  the  defendant  excepted  to  his  opinion,  and  the 
cause  has  been  removed  to  this  Court  by  writ  of  error. 

The  opinion  of  the  Court  of  Common  Pleas,  was  founded  upon  this 
principle,  that  the  action  for  money'  had  and  received,  is  in  nature 
of  a  bill  in  equity,  and  lies  in  all  cases,  where  the  defendant  has  re- 
ceived money,  which  he  cannot  in  good  conscience  retain.  The  money 
having  been  paid  in  this  case  for  land,  to  which  the  defendant  had 
no  title,  tlie  consideration  of  the  payment  has  failed,  and  therefore 
it  is  concluded,  it  ought  to  be  refunded. 

But  although  the  title  has  proved  defective,  it  does  not  follow, 
that  the  money  cannot  in  good  conscience  be  retained,  because  it  may 
have'  been  the  intent  of  the  parties,  that  the  purchaser  should  run 
the  risk  of  the  title.  Between  the  sale  of  goods  and  of  lands  there 
is  a  marked  distinction.  In  the  former,  the  law  implies  a  warranty, 
but  not  in  the  latter.  This  distinction  is  of  long  standing,  not  found- 
ed on  an  arbitrary  rule,  but  existing  in  the  nature  of  things.  With 
regard  to  goods,  possession  is  strong  evidence  of  title,  and  the  only 
evidence  which  in  most  cases  the  purchaser  can  obtain.  But  as  to 
lands,  the  case  is  altogether  different,  because  the  title  depends  on 
writings  only.  Of  these  writings,  one  party  is  as  able  to  judge  as  the 
other;  the  construction  is  often  doubtful,  and  in  doubtful  cases^  where 
the  purchaser  requires  no  warranty,  it  is  reasonable  that  the  price 
should  be  reduced  in  proportion  to  the  hazard.  When  it  has  been 
long  understood,  that  no  warranty  is  implied  on  a  sale  of  lands,  it 
must  be  supposed  that  both  buyer  and  seller  proceeded  on  that  un- 
derstanding. Consequently,  the  purchase  money  may  be  retained  with 
good  conscience.  I  take  for  granted,  that  the  seller  has  practised  no 
fraud,  or  deception.  If  he  has,  the  case  is  altered,  and  the  purchaser 
may  be  relieved  on  other  grounds,  than  failure  of  the  consideration. 
That  the  law  has  been  held  as  I  have  mentioned,  will  appear,  not 
only  from  the  opinion  of  elementary  writers,  but  from  adjudged 
cases,  both  at  law  and  in  equity,  and  I  know  of  no  adjudged  case  of 
good  authority  to  the  contrary.  In  the  case  of  Lord  Burkhurst  v. 
Fenner,  &c.,  Executors  of  Lady  Dacres,  1  Rep.  1,  it  was  determined, 
that  if  one  seized  in  fee  conveys  to  another  in  fee,  without  warran- 
ty, and  without  mention  of  title  papers,  yet  the  papers  pass  to  the 
feoffee,  "because  he  is  to  defend  the  land  at  his  peril ;  it  is  therefore 
reasonable,  that  he  should  have  the  papers  as  incident  to  the  land, 
and  tliat  the  feoffor  should  not  have  them,  because  he  can  receive  no 
benefit  by  keeping  them,  nor  sustain  damage  by  delivering  them." 

Judgment  reversed.^** 

6  6  "If  tne  plaintiff  had  paid  her  money  for  a  mere  quitclaim  deed,  there  be- 
ing no  evidence  or  even  allegation  of  fraud,  but  merely  a  mistake  of  the  par- 


144  BENEFITS   CONFERRED  BY   MISTAKE  (Ch.  2 

CRIPPS  V.  READE. 

(Court  of  King's  Bench,  1796.     0  Term  R.  606.) 

Assumpsit  for  money  had  and  received  to  recover  a  sum  of  forty- 
guineas,  which  had  been  paid  by  the  plaintiff  to  the  defendant  for 
the  purchase  of  a  leasehold  estate.  The  defendant  claimed  the  estate 
in  question  as  administrator  to  Mary  Bartlett,  who  had  taken  out  let- 
ters of  administration  to  her  husband,  the  former  possessor  of  the  es- 
tate, under  the  name  of  Caleb  Bartlett,  his  real  name  being  Carey 
Bartlett.  On  the  sale  the  lease  itself  was  delivered  to  the  plaintiff, 
but  there  was  no  assignment  or  other  conveyance  from  the  defendant: 
but  a  conversation  took  place  between  them  in  which  the  latter  said 
"that  the  premises  were  his  right  and  property  to  do  as  he  liked  with, 
and  if  anything  happened  he  would- see  the  plaintiff  righted."  After- 
wards John  the  nephew  of  Carey  Bartlett  took  out  administration  to 
him  by  the  right  name,  and  recovered  possession  of  the  premises  by 
ejectment. 

It  was  contended  on  the  part  of  the  defendant  at  the  trial,  1st,  that 
no  action  lay  to  recover  the  purchase-money,  on  the  authority  of  Bree 
V.  Holbech,  Dougl.  654  (3d  Ed.),  where  under  circumstances  of  a  simi- 
lar nature  the  principle  of  caveat  emptor  was  held  to  apply.    But  2dly, 

ties  as  to  the  title  of  Bickford  and  Willard,  it  is  well  settled  that  the  plaintiff 
fiould  not,  upon  the  failure  of  title,  recover  back  the  consideration  paid.  Th& 
English  doctrine  on  this  subject  is  stated  in  2  Kent,  Com.  (6th  Ed.)  468.  The 
learned  author  says :  'I  apprehend  that  in  sales  of  land  the  technical  rule 
remits  the  party  back  to  his  covenants  in  his  deed ;  and  if  there  be  no  ingre- 
dient of  fraud  in  the  ease,  and  the  party  has  not  had  the  precaution  to  secure 
himself  by  covenants,  he  has  no  remedy  for  his  money,  even  on  failure  of  title. 
This  is  the  strict  English  rule,  both  at  law  and  in  equity.'  *  *  *  And  this 
is  the  doctrine  which  ought  to  prevail.  It  has  not  only  been  so  long  practiced 
upon  as  to  be  understood,  but  it  is  plain  and  simple,  and  in  conformity  with 
the  language  of  the  deed,  which  does  not  profess  to  do  more  than  convey  such 
right,  title  and  interest  as  the  grantor  has.  And  the  convenience  of  business 
requires  that  such  a  class  of  conveyances  shall  exist,  by  which  a  person  may 
quitclaim  his  title  without  being  subject  to  litigation  if  it  fails.  With  such 
a  doctrine,  a  grantee  can  always  protect  himself  against  mistakes,  by  declin- 
ing to  purchase  unless  the  grantor  will  insert  such  covenants  as  may  be  neces- 
sary. It  is  much  better  to  let  the  deed,  which  is  the  written  contract  between 
the  parties,  settle  the  question  which  party  took  the  risk  of  mistakes  as  to 
the  validity  of  the  title,  than  to  open  the  matter  to  the  uncertainty  and  litiga- 
tion which  the  admission  of  parol  evidence  would  occasion."  Earle  v.  De  Witt 
(186.3)  6  Allen  (Mass.)  520,  526. 

"The  general  rule  is  that  a  purchaser  who  has  accepted  a  deed  can  not  detain 
the  purchase  money,  nor  recover  it  back,  if  already  paid,  unless  there  has  been 
a  breach  of  the  covenants,  either  special  or  statutory,  contained  in  his  deed. 
If  there  be  no  covenants,  express  or  implied,  of  seisin,  good  right  to  convey, 
or  freedom  against  incumbrances,  the  grantee  has  no  cause  of  action,  nor  legal 
excuse  to  hold  back  his  payments  until  he  has  been  evicted.  But  there  is  one 
exception.  Fraud  taints  all  that  it  touches.  If  there  has  been  concealment" 
of  material  facts,  or  misrepresentation  affecting  the  title  or  situation  of  the 
property,  amounting  to  fraud,  the  fact  that  the  contract  has  been  executed 
by  delivery  of  the  deed  does  not  deprive  the  purchaser  of  his  right  to  relief, 
nor  is  it  material  whether  the  covenants  for  title  do  or  do  not  extend  to  the. 
particular  defect.  Rawle  on  Covenants  for  Title  (4th  Ed.)  p.  565  et  seq." 
Diggs  V.  Kir  by  (1883)  40  Ark.  420. 


Sec.  2)  SPECIFIC  APPLICATIONS   OF  THE    DOCTRINE  145 

if  any  action  could  be  maintained,  it  could  only  be  on  the  special  war- 
ranty. But  Lawrence,  J.,  before  whom  the  cause  was  tried  at  the  last 
Oxford  Assizes,  overruled  the  objections,  and  directed  a  verdict  to  be 
found  for  the  plaintiff,  with  liberty  to  the  defendant  to  move  to  enter 
a  nonsuit. 

Plumer  now  made  that  motion,  upon  the  grounds  mentioned  at  the 
trial. 

Lord  Ke;nyon,  Ch.  J.  I  do  not  wish  to  disturb  the  rule  of  caveat 
emptor  adopted  in  Bree  v.  Holbech,  and  in  other  cases  where  a  regu- 
lar conveyance  was  made,  to  which  other  covenants  were  not  to  be  add- 
ed ;  for  in  general  the  seller  only  covenants  for  his  own  acts  and  for 
those  of  his  ancestor,  in  which  respect  the  case  of  a  mortgage  dift'ers 
from  it,  as  a  mortgagor  covenants  that  at  all  events  he  has  a  good  title  : 
but  here  the  whole  passed  by  parol,  and  it  proceeded  on  a  misappre- 
hension by  both  parties  tliat  the  defendant  was  the  legal  representa- 
tive of  the  lessee,  though  it  turned  out  afterwards  that  he  was  not.  As 
therefore  the  money  was  paid  under  a  mistake,  I  think  that  an  action 
for  money  had  and  received  will  lie  to  recover  it  back;  in  the  case 
cited  no  action  at  all  could  have  been  maintained. 

Rule  refused. 


NORTON  v.  HARDEN. 
(Supreme  Judicial  Court  of  Maine,  1838.     15  Me.  45,  32  Am.  Dec.  132.) 

Assumpsit  for  money  had  and  received,  brought  to  recover  back 
the  consideration  money  paid  by  the  plaintiff  to  the  defendant  for  the 
assignment  of  a  bond  of  a  lot  of  land  in  Bangor.  The  defendant 
held  by  assignment  a  bond  for  the  conveyance  of  a  lot,  described  in  the 
bond,  on  payment  of  a  specified  sum.  Prior  to  the  bargain  between 
these  parties,  there  being  no  evidence  that  the  defendant  knew  where 
the  lot  was,  they  went  together  and  inquired  and  entered  upon  land 
supposed  by  them  to  be  the  same  described  in  the  bond,  and  thereupon 
the  defendant  assigned  over  the  bond,  and  received  the  price  agreed 
on.  '  The  plaintiff  soon  afterwards  discovered,  that  the  lot  described 
in  the  bond  was  a  different  one  from  that  seen  by  the  parties,  and 
much  inferior  to  it,  and  gave  notice  thereof  to  the  defendant,  offered 
back  the  bond,  and  demanded  the  money  paid  by  him. 

The  trial  was  before  Shepley  J.,  who  instructed  the  jury,  that  if 
they  were  satisfied  from  the  testimony,  tliat  the  defendant  showed  to 
the  plaintiff  a  different  lot  from  that  described  in  the  bond,  before  the 
contract  was  made  between  them ;  and  that  it  was  made  upon  that 
erroneous  information ;  and  that  from  the  description  in  the  bond  he 
was  not  undeceived;  they  would  find  for  the  plaintiff,  whether  such 
erroneous  information  was  given  by  the  defendant  fraudulently,  or 

TUURS.QUASI  CONT. 10 


lie  BENEFITS  CONFERRED  BY  MISTAKE  (Ch.  2 

through  mistake,  or  want  of  information  on  the  part  of  the  defendant ; 
and  if  not  thus  satisfied,  that  they  should  find  for  the  defendant.  The 
verdict  was  for  tlie  plaintiff,  and  the  defendant  excepted. 

The  action  was  continued  nisi,  and  the  opinion  of  the  Court  after- 
wards delivered  by 

ShbplEY,  J.  This  is  assumpsit  for  money  had  and  received,  brought 
to  recover  back  a  sum  of  money  alleged  to  have  been  paid  under  a 
mistake.  And  the  question  presented  by  this  bill  of  exceptions  is, 
whether  where  parties  contract  under  a  mutual  mistake  of  the  facts 
supposed  to  exist,  there  being  no  fraud,  and  no  beneficial  interest 
obtained,  the  one  who  pays  can  recover  back  the  money  paid. 

Certain  principles  in  relation  to  this  action  seem  now  to  be  well 
settled.  Money  paid  under  a  mistake  of  the  law  cannot  be  reclaimed. 
Doug.  471 ;  Bilbie  v.  Lumley,  2  East,  469;  Stevens  v.  Lynch,  12  East, 
38;  Brisbane  v.  Dacres,  5  Taunt.  144;  Mowatt  v.  Wright,  1  Wend. 
(N.  Y.)  355,  19  Am.  Dec.  508.  But  a  mistake  of  a  foreign  law  is 
regarded  as  a  mistake  of  a  fact.  Haven  v.  Foster,  9  Pick.  (Mass.)  112, 
19  Am.  Dec.  353.  Nor  can  it  be  reclaimed,  when  voluntarily  paid  with 
a  knowledge,  or  means  of  knowledge  in  hand  of  the  facts.  Martin 
V.  Morgan,  1  Brod.  &  Bing.  289;  Welsh  v.  Carter,  1  Wend.  (N.  Y.) 
185,  19  Am.  Dec.  473.  Nor  where  there  may  be  a  mistake  of  the  facts, 
if  the  party  paying  has  derived  a  substantial  benefit  from  such  pay- 
ment; because  he  is  not  then  entitled  ex  aequo  et  bono  to  reclaim  it. 
Taylor  v.  Hare,  4  B.  &  P.  262.  But  when  paid  under  a  mistake  of 
facts,  and  without  any  laches  on  the  part  of  the  payer,  and  without 
any  substantial  benefit  derived  from  it,  it  may  be  recovered  back. 
Hern  v.  Nicholls,  1  Salk.  289;  Cox  v.  Prentice,  3  M.  &  S.  344;  Milnes 
V.  Duncan,  6  B.  &  C.  671 ;  Garland  v.  Salem  Bank,  9  Mass.  408,  6  Am. 
Dec.  86. 

In  Mowatt  v.  Wright  it  is  said,  that  an  error  of  fact  takes  place, 
either  when  some  fact  which  really  exists  is  unknown,  or  some  fact 
is  supposed  to  exist,  which  really  does  not  exist.  And  that,  "the  cases 
founded  on  mistake  seem  to  rest  on  this  principle,  that  if  parties,  be- 
lieving that  a  certain  state  of  things  exist,  come  to  an  agreement  with 
such  belief  for  a  basis,  on  discovering  tlieir  mutual  error,  they  are 
remitted  to  their  original  rights." 

In  Cox  V.  Prentice,  Lord  Ellenborough  says,  "Now  this  is  a  case  of 
mutual  innocence  and  equal  error,  which  is  not  an  unusual  case  for 
money  had  and  received." 

In  the  case  now  under  consideration  the  instructions  required,  that 
the  jury  should  find,  that  there  was  a  mistake  of  fact,  viz.:  that  the 
plaintiff  supposed,  that  he  was  purchasing  a  bond  for  a  dififerent  lot 
from  the  one  described  in  it;  and  that  they  should  also  find,  that  the 
contract  was  made  upon  that  mistake  of  facts.  But  it  is  insisted,  that 
the  plaintiff  had  the  means  of  correct  knowledge.  And  in  one  sense  a 
person  may  be  said  always  to  have  the  means  of  knowledge.    He  may 


JSeC.  2)  SPECIFIC   APPLICATIONS   OF  THE    DOCTRINE  147 

have  access  to  books,  and  to  the  assistance  and  instructions  of  his  fellow 
men.  But  the  means  of  knowledge  which  the  law  requires  are  such, 
as  the  party  may  avail  himself  of  as  then  present  without  calling  to 
his  aid  other  assistance.  And  in  this  case  there  is  no  ground  for  in- 
ferring, that  the  plaintiff  had  then  the  means  of  knowing  that  the  true 
lot  designated  in  the  bond  was  not  the  one  examined.  He  does  not  ap- 
pear to  have  had  any  more  satisfactory  means  of  knowledge,  than  the 
statements  of  the  defendant,  and  those  proved  to  be  erroneous. 

It  is  also  insisted,  that  the  case  is  within  the  principle  of  the  deci- 
sions of  this  Court,  that  the  party,  who  takes  a  deed  of  release  of 
real  estate,  if  he  obtain  thereby  no  title,  cannot  recover  back  the  mon- 
ey paid.  Both  parties  in  such  cases,  must  be  supposed  to  understand 
the  tract  of  land  purporting  to  be  conveyed.  And  the  absence  of  all 
covenants  of  title  is  satisfactory  evidence,  that  they  knew  that  tlie  title 
was  doubtful,  and  that  the  contract  was  made  upon  that  basis.  If 
in  such  cases  there  is  any  mistake,  it  is  rather  a  mistake  of  law, 
than  of  fact.  But  the  substance  of  the  contract  is,  that  the  party 
purchasing  agrees  to  purchase  the  other's  right,  whatever  it  may  be, 
and  take  the  risk  of  the  title  upon  himself.  And  in  such  cases, 
there  is  no  principle  of  law,  which  authorizes  him  to  reclaim  the 
purchase  money  in  case  of  an  entire  failure  of  title.  This  is  not  the 
case  of  a  conveyance  of  real  estate,  but  the  assignment  of  a  contract 
for  a  conveyance,  and  the  contract  of  assignment  made  upon  a  mis- 
take of  facts.  And  there  is  no  evidence,  that  the  plaintiff  obtained 
any  benefit  from  it. 

Exceptions  overruled,  and  judgment  on  the  verdict.®" 

66  "It  Is  undoubtedly  the  well-established  rule  of  law  that  so  long  as  a  con- 
tract for  the  sale  of  land  is  executory  only,  the  purchaser  is  entitled  to  have 
a  good  title,  unless  the  contrary  is  expressly  or  impliedly  agreed ;  but  when 
the  bargain  is  consummated  by  the  delivery  and  acceptance  of  a  deed,  the 
purchaser  must  look  to  the  covenants  he  has  taken  care  to  have  provided,  and 
in  the  absence  of  fraud  has  no  right  to  relief,  either  at  law  or  in  equity  for 
defects  of  title,  except  as  such  covenants  afford  it.  Rawle,  Gov.  Tit.  606 ;  Cro. 
Jac.  196 ;  (1705)  1  Salk.  211 ;  (17S7)  1  Term  R.  762 ;  (1S06)  13  Ves.  121 ;  (1781) 
Doug.  665;  Frost  v.  Raymond  (1805)  2  Gaines  (N.  Y.)  188,  2  Am.  Dec.  228,  note; 
Com.  v.  McGlanachan's  Ex'rs  (1826)  4  Rand.  (Va.)  482.  *  *  *  This  case, 
therefore,  in  my  opinion  does  not  come  within  the  rule  that  a  purchaser  who 
takes  a  conveyance  of  real  estate,  must  take  care  to  protect  himself  against 
a  failure  of  title  by  appropriate  covenants  or  take  the  risk  on  himself,  for 
the  reason  that  no  conveyance  was  made  or  intended  to  be  made  in  which 
covenants  could  be  inserted.  The  rule  is  technical  and  does  not  apply  if  a 
conveyance  is  not  in  fact  perfected.  In  that  event  the  purchaser  can  recover 
back  his  money  if  the  title  fails,  even  where  he  has  taken  possession  of  the 
property.  Cripps  v.  Reade  (1796)  6  Term  R.  606;  Johnson  v.  Johnson  (1802) 
3  Bos.  &  Pul.  166;  Williams  v.  Reed  (1827)  5  Pick.  (Mass.)  480."  Phillips  v. 
City  of  Hudson  (1864)  31  N.  J.  Daw,  143,  150. 

In  Earle  v.  Bickford  (1803)  6  Allen  (Mass.)  549,  83  Am.  Dec.  651,  the  de- 
fendant, assuming  to  act  as  assignee  for  one  Stone,  an  insolvent  debtor,  sold 
and  conveyed  to  plaintiff  by  quitclaim  deed  certain  land  belonging  to  Stone ; 
but  for  want  of  jurisdiction  of  the  court  which  appointed  defendant  as  as- 
signee of  Stone  the  sale  was  void.    The  court  allowed  plaintiff  to  recover  the 


148  BENEFITS  CONFERRED  BY  MISTAKE  (Ch.  2 

EICHOLZ  V.  BANNISTER. 

(Court  of  Common  Pleas,  1SG4.    17  C.  B.  [N.  S.]  707.) 

This  was  an  action  brought  in  the  court  of  record  for  the  trial  of 
civil  actions  within  the  city  of  Manchester,  and  which  was  tried  before 
the  Deputy  Recorder  of  that  city. 

The  declaration  contained  the  common  indebitatus  counts,  for  money 
received  for  the  use  of  the  plaintiff,  and  for  money  paid ;  and  the 
only  plea  was,  never  indebted. 

The  plaintiff  claimed  £19.,  as  money  received  to  his  use  by  the  de- 
fendant under  the  following  circumstances :  The  defendant  is  a  job- 
warehouseman,  at  Chorlton  Street,  Manchester,  and  on  the  18th  of 
April,  1864,  the  plaintiff  went  to  the  defendant's  warehouse  and  bought 
of  him  certain  pieces  of  print,  which  the  defendant  represented  as  a 
job-lot  just  received  by  him.  The  price,  £19.,  was  thereupon  paid  by 
the  plaintiff,  and  the  goods  were  afterwards  duly  delivered. 

The  goods  so  bought  by  the  plaintiff  had,  in  fact,  been  stolen  from 
the  warehouse  of  John  Krauss,  by  one  Richard  Aspinwall,  who  was 
subsequently  convicted  of  the  offence;  and  the  plaintiff,  being  ulti- 
mately obliged  to  restore  the  goods  to  Krauss,  required  the  defendant 
to  return  the  money  he  had  paid  for  them.  The  defendant  refused  to 
comply  with  such  request,  and  therefore,  the  present  action  was 
brought. 

The  learned  judge  directed  a  verdict  to  be  entered  for  the  plaintiff 
for  the  amount  claimed,  reserving  leave  to  the  defendant  to  move  to 
set  aside  the  verdict  and  enter  a  nonsuit  or  a  verdict  for  the  defendant, 
if  the  court  should  be  of  opinion  that  the  plaintiff  was  not  entitled  to 
recover.    A  rule  nisi  was  allowed. 

ErlE,  C.  J.®^  I  am  of  opinion  that  this  rule  should  be  discharged. 
The  plaintiff  brings  his  action  to  recover  back  money  which  he  paid  for 
goods  bought  by  him  in  the  shop  of  the  defendant,  which  were  after- 
wards lawfully  claimed  from  him  by  a  third  person,  the  true  owner, 
from  whom  they  had  been  stolen.  The  plaintiff  now  claims  to  re- 
money  he  had  paid,  saying,  "If  the  title  fails  for  want  of  authority  in  the 
IK^rsou  Avho  makes  the  deed  to  act  in  the  capacity  in  which  he  proposes  to  act, 
the  consideration  may  be  recovered  back." 

It  has  also  been  held  that  one  who  purchases  land  at  an  execution  sale 
where  the  judgment  on  which  the  execution  issued  was  void,  and  consequently 
the  sale  itself  void,  may  recover  from  the  judgment  creditor  the  purchase  mon- 
ey paid  at  the  sale.  Henderson  v.  Overton  (1S80)  2  Yerg.  (10  Tenn.)  394,  24 
Am.  Dec.  492  (an  equity  case) ;  Schwinger  v.  Hickok  (1873)  53  N.  Y.  280 ;  Hox- 
ter  V.  Poppleton  (1881)  9  Or.  482.  (In  this  and  the  preceding  case  the  judg- 
ment creditor  seems  to  have  been  aware  of  the  invalidity  of  his  judgment, 
making  his  receipt  of  the  money  fraudulent.) 

6"  The  statement  of  facts,  excepting  the  last  paragraph  thereof,  is,  with 
slight  modifications,  taken  from  the  report  of  the  case  found  in  34  Law  Journal 
Common  Pleas,  105.  The  concurring  opinions  of  Byles  and  Keating,  JJ.,  are 
omitted. 


Sec.  2)  SPECIFIC  APPLICATIONS   OF  THE    DOCTRINE  149 

cover  back  the  money  as  having  been  paid  by  him  upon  a  consideration 
w^hich  has  failed.  The  jury  at  the  trial  found  a  verdict  for  the  plain- 
tiff, under  the  direction  of  the  learned  judge  who  presided,  and  a  rule 
has  been  obtained  on  behalf  of  the  defendant  to  set  aside  that  ver- 
dict and  to  enter  a  nonsuit,  on  the  ground  that  it  is  part  of  the  com- 
mon law  of  England  that  the  vendor  of  goods  by  the  mere  contract 
of  sale  does  not  warrant  his  title  to  the  goods  he  sells,  that  the  buyer 
takes  them  at  his  peril,  and  that  the  rule  caveat  emptor  applies.  The 
case  has  been  remarkably  well  argued  on  both  sides;  and  the  court 
are  much  indebted  to  the  learned  counsel  for  the  able  assistance  they 
have  rendered  to  them.  The  result  I  have  arrived  at  is,  that  the 
plaintiff  is  entitled  to  retain  his  verdict.  I  consider  it  to  be  clear  upon 
the  ancient  authorities  that,  if  the  vendor  of  a  chattel  by  word  or  con- 
duct gives  the  purchaser  to  understand  that  he  is  the  owner,  that 
tacit  representation  forms  part  of  the  contract,  and  that,  if  he  is 
not  the  owner,  his  contract  is  broken.  So  is  the  law  laid  down 
in  the  very  elaborate  judgment  of  Parke,  B.,  in  Morley  v.  Attenbor- 
ough,  3  Exch.  500,  513,  where  that  learned  judge  puts  the  case  upon 
which  I  ground  my  judgment.  A  difference  is  taken  in  some  of  the 
cases  between  a  warranty  and  a  condition  [see  Bannerman  v.  White, 
10  C.  B.  (N.  S.)  844]  ;  but  that  is  foreign  to  the  present  inquiry.  In 
Morley  v.  Attenborough,  3  Exch.  513,  Parke,  B.,  says:  "We  do  not 
suppose  that  there  would  be  any  doubt,  if  the  articles  are  bought  in  a 
shop  professedly  carried  on  for  the  sale  of  goods,  that  the  shop-keep- 
er must  be  considered  as  warranting  that  those  who  purchase  will  have 
a  good  title  to  keep  the  goods  purchased.  In  such  a  case  the  vendor 
sells  'as  his  own,'  and  that  is  what  is  equivalent  to  a  warranty  of  ti- 
tle." 

No  doubt,  if  a  shopkeeper  in  words  or  by  his  conduct  affirms  at  the 
time  of  the  sale  that  he  is  the  owner  of  the  goods,  such  affirmation 
becomes  part  of  the  contract,  and,  if  it  turns  out  that  he  is  not  the 
owner,  so  that  the  goods  are  lost  to  the  buyer,  the  price  which  he 
has  received  may  be  recovered  back.  I  ventured  to  throw  out  some 
remarks  in  the  course  of  the  argument  upon  the  doctrine  relied  on  by 
Mr.  Holker,  which  he  answered  by  assertion  after  assertion  coming 
no  doubt  from  judges  of  great  authority  in  the  law,  to  the  effect  that 
upon  a  sale  of  goods  there  is  no  implied  warranty  of  title.  The  pas- 
sage cited  from  Noy  <=^  certainly  puts  the  proposition  in  a  manner  that 
must  shock  the  understanding  of  any  ordinary  person.  But  I  take  the 
principle  intended  to  be  illustrated  to  be  this,— I  am  in  possession  of 
a  horse  or  other  chattel :  I  neither  affirm  or  deny  that  I  am  the  owner  : 

«8Noy's  Maxims,  a  42,  p.  89:  "If  I  take  the  horse  of  another  man  and 
sell  him,  and  the  owner  take  him  again,  T  may  have  an  action  of  debt  for  the 
money ;  for,  the  bargain  was  perfect  by  the  delivery  of  the  horse ;  and  caveat 
emptor." 


150  BENEFITS   CONFERRED   BY   MISTAKE  (Ch.  2 

if  you  choose  to  take  it  as  it  is,  without  more,  caveat  emptor:  you  have 
no  remedy,  though  it  should  turn  out  that  I  have  no  title.  Where  that 
is  the  whole  of  the  transaction,  it  may  be  that  there  is  no  warranty 
of  title.  Such  seems  to  have  been  the  principle  on  which  Morley  v.  At- 
tenborough  was  decided.  The  pawnbroker,  when  he  sells  an  unre- 
deemed pledge,  virtually  says, — I  have  under  the  provisions  of  the 
statute  (39  &  40  G.  Ill,  c.  99,  §  17)  a  right  to  sell.  If  you  choose  to 
buy  tlie  article,  it  is  at  your  own  peril.  So,  in  the  case  of  the  sale  by 
the  sheriff  of  goods  seized  under  a  fi.  fa., — Chapman  v.  Speller,  14  Q. 
B.  621. 

The  fact  of  the  sale  taking  place  under  such  circumstances  is  notice 
to  buyers  that  the  sheriff  has  no  knowledge  of  the  title  to  the  goods ; 
and  the  buyers  consequently  buy  at  their  own  peril.  Many  contracts 
of  sale  tacitly  express  the  same  sort  of  disclaimer  of  warranty.  In 
this  sense  it  is  that  I  understand  the  decision  of  this  court  in  Hall  v. 
Conder,  2  C.  B.  (N.  S.)  22.  There,  the  plaintiff  merely  professed  to 
sell  the  patent-right  such  as  he  had  it,  and  the  court  held  that  the  con- 
tract might  still  be  enforced,  though  the  patent  was  ultimately  de- 
feated on  the  ground  of  want  of  novelty.  The  thing  which  was  the 
subject  of  the  contract  there  was  not  matter,  it  was  rather  in  the  nature 
of  mind.  These  are  some  of  the  cases  where  the  conduct  of  the  seller 
expresses  at  the  time  of  the  contract  that  he  merely  contracts  to  sell 
such  a  title  as  he  himself  has  in  the  thing.  But,  in  almost  all  the  trans- 
actions of  sale  in  common  life,  the  seller  by  the  very  act  of  selling  holds 
out  to  the  buyer  that  he  is  the  owner  of  the  article  he  offers  for  sale. 
The  sale  of  a  chattel  is  the  strongest  act  of  dominion  that  is  incidental 
to  ownership.  A  purchaser  under  ordinary  circumstances  would  nat- 
urally be  led  to  the  conclusion  that,  by  oft'ering  an  article  for  sale,  the 
seller  affirms  that  he  has  title  to  sell,  and  that  the  buyer  may  enjoy 
that  for  which  he  parts  with  his  money.  Such  a  case  falls  within  the 
doctrine  stated  by  Blackstone,  and  is  so  recognized  by  Littledale,  J., 
in  Early  v.  Garrett,  9  B.  &  C.  928,  4  M.  &  R.  687,  and  by  Parke,  B.,  in 
Morley  v.  Attenborough,  3  Exch.  513.  I  think  justice  and  sound  sense 
require  us  to  limit  the  doctrine  so  often  repeated,  that  there  is  no  im- 
plied w^arranty  of  title  on  the  sale  of  a  chattel. 

I  cannot  but  take  notice  that,  after  all  the  research  of  two  very 
learned  counsel,  the  only  semblance  of  authority  for  this  doctrine 
from  the  time  of  Noy  and  Lord  Coke  consists  of  mere  dicta.  These 
dicta,  it  is  true,  appear  to  have  been  adopted  by  several  learned  judges, 
amongst  others  by  my  excellent  Brother  Williams,,  whose  words  are 
almost  obligatory  on  me :  but  I  cannot  find  a  single  instance  in  which 
it  has  been  more  than  a  repetition  of  barren  sounds,  never  resulting  in 
the  fruit  of  a  judgment.  This  very  much  tends  to  shew  the  wisdom 
of  Lord  Campbell's  remark  in  Sims  v.  Marryat,  17  Q.  B.  291,  that  the 
rule  is  beset  with  so  many  exceptions  that  they  well  nigh  eat  it  up.    It 


Sec.  2)  SPECIFIC  APPLICATIONS   OF  THE    DOCTRINE  151 

is  to  be  hoped  that  the  notion  which  has  so  long  prevailed  will  now 
pass  away,  and  that  no  further  impediment  will  be  placed  in  the  way  of 
a  buyer  recovering  back  money  which  he  has  parted  with  upon  a 
consideration  which  has  failed. 
Rule  discharged.^* 


SMART  V.  GALE. 
(Supreme  Court  of  New  Hampshire,  1882.    62  N.  H.  62.) 

Assumpsit,  for  money  had  and  received.  Facts  found  by  a  referee. 
September  3,  1879,  the  plaintiff  purchased  of  the  defendant  the  stock 
of  goods,  furniture,  fixtures,  and  good-will  of  a  fruit  store  in  Concord, 
for  the  sum  of  $3,200,  with  an  agreement  that  neither  the  defendant, 
nor  his  son  who  had  been  a  clerk  in  the  store,  should  engage  in  the 
same  business  in  Concord  for  ten  years,  agreeing  to  pay  therefor  by 
conveying  to  the  defendant  a  house  valued  at  $2,400,  and  giving  notes 
for  $600  and  $200,  secured  by  mortgage  on  all  the  property  in  the 
store  except  the  stock.  The  defendant,  by  a  bill  of  sale  under  seal, 
conveyed  to  the  plaintiff  all  the  stock  in  trade,  furniture,  fixtures,  in- 
cluding shelving  and  counters,  and  all  other  personal  property  in  the 
store  and  store  cellar.  The  bill  of  sale  also  contained  the  following: 
"And  I  hereby  covenant  with  the  said  grantee  that  I  am  the  lawful 
owner  of  the  said  goods  and  chattels,  that  they  are  free  from  all  incum- 
brances, and  tliat  I  have  good  right  to  sell  the  same  as  aforesaid,  and 
that  I  will  warrant  and  defend  the  same  against  the  lawful  claims 
and  demands  of  all  persons."  He  also  gave  to  the  plaintiff  a  bond 
in  accordance  with  his  agreement  not  to  engage  in  business  for  ten 
years.  The  plaintiff  conveyed  the  house  to  the  defendant,  and  gave 
him  a  note  for  $600,  and  a  note  for  $200,  secured  by  mortgage,  as  had 
been  agreed.  No  price  was  fixed  for  any  portion  of  the  defendant's 
■property  separate  from  the  rest.  The  plaintiff  immediately  entered 
into  possession  of  the  store  and  other  property  purchased.  He  did  not 
rescind  or  attempt  to  rescind  the  contract.  He  did  not  reconvey  or  of- 
fer the  property,  or  any  part  of  it,  back  to  the  defendant.  In  Decem- 
ber, 1879,  he  was  informed  that  the  owner  of  the  store  owned  the 
fixtures,  and  thereupon  he  commenced  this  action,  December  17,  1879. 
He  continued  to  occupy  the  store  till  about  June  1,  1880,  when  he 
abandoned  it,  and  surrendered  the  key  to  the  agent  of  the  owner,  leav- 
es For  a  discussion  of  the  general  question  of  implied  warranty  upon  the 
sale  of  a  chattel  see  Willistou  on  Sales,  §§  216-222. 

Implied  Warranty  on  Sale  of  a  Chose  in  Action. — "The  doctrine  of  im- 
plied warranty  of  title  applies  not  simply  to  chattels  but  also  to  choses  in  ac- 
tion, both  to  those  having'  tangible  lonu,  such  as  bonds,  stock,  negotiable  pa- 
per, and  also  to  those  having  no  tiingible  form,  such  as  accounts,  rights  in  a 
partnership,  and  rights  in  inventions  whether  patented  or  not;  in  short  the 
doctrine  is  applicable  to  all  personal  property."  Williston  on  Sales,  §  218, 
See,  also,  Costigan  v   Hawkins  (18G7)  22  Wis.  74,  94  Am.  Dec.  5S3. 


152  BENEFITS  CONFERRED  BY   MISTAKE  (Ql.  2 

ing"  therein  all  the  property  purchased  of  the  defendant  except  the  stock 
of  goods. 

Clark,  J.  The  plaintiff  seeks  to  recover  the  value  of  the  fixtures 
on  the  ground  of  a  failure  of  consideration.  This  is  not  a  case  of  a 
payment  made  upon  a  legal  consideration  which  has  wholly  failed, 
and  may  therefore  be  recovered  back.  Leach  v.  Tilton,  40  N.  H.  473, 
475.  There  was  no  separate  valuation  of  the  fixtures  and  no  offer  to 
return  them.  Weeks  v.  Robie,  42  N.  H.  316.  The  contract  was  en- 
tire, and  has  never  been  rescinded,  and  the  action  cannot  be  maintained. 
Way  V.  Cutting,  17  N.  H.  450;  Miner  v.  Bradley,  22  Pick.  (Mass.) 
457;  Clark  v.  Baker,  5  Mete.  (Mass.)  452;  Bassett  v.  Percival,  5 
Allen  (Mass.)  345. 

Judgment  for  the  defendant. 


III.  Mistake  as  to  Existence  of  Subject-Matter  oe  a  Contract 

STRICKLAND  v.  TURNER. 
(Court  of  Exchequer,  1852.     7  Exch.  208.) 

Assumpsit  for  money  had  and  received  by  the  defendant,  as  execu- 
trix of  Edward  Henry  Lane,  deceased. — Plea,  non  assumpsit,  and  issue 
thereon. 

By  mutual  consent,  and  by  a  Judge's  order,  a  case  was  stated  for 
the  opinion  of  this  Court. 

Pollock,  C.  B.'^"  The  question  in  this  case,  which  the  Court  took 
time  to  consider,  lies  in  a  very  narrow  compass.  The  plaintiff  brought 
his  action  against  the  defendant  to  recover  back  money  paid  by  him 
for  the  purchase  of  an  annuity  bequeathed  to  Edward  Henry  Lane,  of 
Sydney,  New  South  Wales,  by  the  will  of  Mrs.  Elizabeth  Way.  That 
annuity  had  been  assigned  by  Edward  Henry  Lane,  who  was  still 
residing  in  Sydney,  to  Arthur  Daintrey  and  Adrian  Daintrey,  in  or- 
der that  they,  as  his  trustees,  might  dispose  of  it  in  England  for  his 
benefit.  They  accordingly  entered  into  a  negotiation  with  tlie  plain- 
tiff, who  was  the  residuary  legatee  under  Mrs.  Way's  will,  for  the 
purchase  of  this  annuity.  The  question  between  the  parties  is  this — 
whether  the  purchase  took  effect  during  the  existence  of  the  annuity. 
If  it  did,  though  but  for  an  instant,  the  plaintiff  is  not  entitled  to  suc- 
ceed; for  he  purchased  the  annuity,  and  cannot  complain  that  in  so 
doing  he  has  made  a  bad  bargain,  as  the  events  have  turned  out.  But 
if,  on  the  contrary,  the  annuity  had  ceased  to  exist  before  his  purchase, 
then  he  has  got  nothing  for  his  purchase-money,  and  is  entitled  to  re- 
cover it  back  from  the  defendant,  the  executrix  of  Lane,  who  has  re- 
ceived it  from  the  trustees. 

7  0  The  statement  of  facts  is  omitted. 


Sec.  2)  SPECIFIC   APPLICATIONS   OF  THE    DOCTRINE  153 

The  question,  therefore,  is,  what  was  the  bargain,  and  when  did  it 
take  effect?  If  the  annuity  was  sold  upon  the  5th  of  February,  1849, 
by  the  acceptance  contained  in  tlie  letter  of  that  date,  the  subsequent 
death  of  the  annuitant  at  Sydney  on  the  6th  of  February,  1849,  will 
defeat  the  plaintiff's  claim.  If,  on  the  other  hand,  the  agreement  was 
for  a  future  sale,  to  be  effected  by  assignment  of  the  annuity,  which 
took  place  on  the  28th  of  February,  the  previous  death  of  the  annuitant 
will  entitle  the  plaintiff  to  recover. 

We  must,  therefore,  examine  carefully  the  different  letters  and  docu- 
ments, to  see  which  of  these  two  views  of  the  case  we  ought  to  adopt 
as  the  fair  result  of  the  whole  correspondence.  There  is  no  doubt 
that  if  the  purchase  had  been  completed,  that  is  to  say,  if  there  had 
been  an  agreement  that  from  and  after  the  5th  of  February,  1849, 
the  annuity  was  to  belong  to  Mr.  Strickland,  and  the  money  given 
for  it  to  belong  to  the  trustees,  the  subsequent  death  of  Lane  would 
make  no  difference.  Even  a  bill  for  a  specific  performance  could  have 
been  maintained  upon  such  an  agreement,  according  to  the  case  of 
Kenney  v.  Wexham,  6  Madd.  357.  There,  there  was  an  agreement 
dated  18th  April,  1818,  for  the  future  purchase  of  an  annuity  by  the 
payment  of  two  instalments,  the  first  in  October,  1818,  and  the  last 
in  January,  1819.  The  death  was  subsequent  to  the  last  stipulated 
payment.  And  the  Vice-Chancellor  held,  that  from  that  date  the  pur- 
chaser became  entitled  to  it,  and  that  the  subsequent  death  of  the  an- 
nuitant in  October,  1820,  did  not  prevent  the  purchaser  from  having 
a  specific  performance ;  and  for  this,  Mortimer  v.  Capper,  1  Bro.  C. 
C.  156,  Jackson  v.  Lever,  3  Bro.  C.  C.  604,  Coles  v.  Trecothick,  9  Ves. 
234,  were  cited. 

But  here,  in  the  correspondence,  we  find  no  such  arrangement  till 
the  assignment  of  the  28th  of  February.  The  offer  which  is  stated  by 
Mr.  Strickland's  agent,  Mr.  Cookney,  in  the  letter  of  31st  January, 
1849,  is  for  the  purchase  of  the  annuity  "to  be  completed  next  April, 
after  the  current  half-year's  annuity  is  paid,  and  the  legacy  duty  then 
payable  satisfied,  and  the  future  legacy  duty  allowed  for;"  and  he 
adds,  that  his  client  will  be  prepared  to  do  this  on  the  30th  of  April, 
unless  they  can  agree  for  an  earlier  day  of  payment,  and,  so  to  speak, 
to  discount  the  payment  of  the  30th  of  April  on  that  earlier  day. 

It  is  a  clear  stipulation  throughout  the  correspondence,  that  the  an- 
nuity shall  continue  to  be  paid  up  to  that  day,  whatever  that  might  be ; 
and  until  that  day  was  fixed  it  is  impossible  to  ascertain  what  sum 
of  money  was  to  be  paid  and  received.  Now  this  was  never  ascertained 
or  settled  in  the  lifetime  of  the  annuitant.  The  annuity,  therefore, 
still  continued  to  belong  to  Lane,  and  never,  as  the  Vice-Chancellor 
says  in  Kenney  v.  Wexham,  passed  to  the  purchaser,  till  this  was  as- 
certained and  the  bargain  finally  arranged  between  them.  When  this 
was  done,  the  annuity  became  the  property  of  Strickland,  and  the 
money  the  property  of  the  vendors.  But  then,  there  was  no  annuity 
in  existence.     The  money,  therefore,  which  was  paid,  was  paid  wholly 


154  BENEFITS   CONFERRED   BY   MISTAKE  (Cll.  2 

without  consideration,  and  may  now  be  recovered  back  from  the  de- 
fendant, to  whom,  as  the  executrix  of  Lane,  it  has  passed.    We  tliink, 
therefore,  that  the  judgment  should  be  for  the  plaintiff. 
Judgment  for  the  plaintiff/^ 

Ti  In  Hitchcock  v.  Giddings  (1817)  4  Price,  135,  plaintiff  had  bought  from  de- 
fendant a  remainder  expectant  on  a  fee  tail  and  gave  his  bond  for  payment. 
Plaintiff  by  bill  in  equity  sought  to  be  relieved  from  his  bond  on  the  ground 
t^at  the  tenant  in  tail  had  before  plaintiff's  purchase,  unknown  to  plaintiff  and 
defendant,  suffered  a  common  recovery,  thereby  cutting  off  the  remainder. 
Richards,  C.  B.,  held  for  plaintiff  on  the  ground  that  at  the  time  of  the  sale 
defendant  had  nothing  to  sell,  and  therefore  it  was  a  fraud  in  equity  for  de- 
fendant to  keep  plaintiff's  money. 

In  Allen  v.  Hammond  (1837)  11  Pet.  63,  9  L.  Ed.  633,  a  vessel  belonging  to 
Hammond  was  unlawfully  captured  by  a  Portuguese  warship  and,, with  her 
cargo,  condemned.  Upon  the  remonstrances  of  the  government  of  the  United 
States  the  claim  of  the  owner  for  compensation  for  this  capture  was  on  the 
19th  of  January,  1832,  admitted  by  the  Portuguese  government  to  an  amomit 
exceeding  $33,000 ;  one-fourth  of  which  was  soon  after  paid.  On  the  27th  of 
January  Hammond  made  an  agreement  under  seal  with  Allen  (neither  of  them 
knowing  of  the  admission  of  the  claim  by  Portugal)  to  allow  him  a  sum  a  little 
below  one-third  of  the  whole  amount  claimed  as  commissions,  on  his  agreeing  to 
use  his  utmost  efforts  for  the  recovery  of  such  claim  from  the  Portuguese  gov- 
ernment. Hammond  filed  a  bill  in  equity  for  the  cancellation  of  this  agree- 
ment The  court  granted  his  prayer,  McLean,  J.,  who  spoke  for  the  court, 
saying  in  part :  "That  the  contract  was  entered  into  by  both  parties  under  a 
mistake,  is  unquestionable.  Neither  of  them  knew  that  the  Portuguese  govern- 
ment had  allowed  the  claim.  Can  a  court  of  equity  enforce  such  a  contract? 
Can  it  refuse  to  cancel  it?  That  the  agreement  was  without  consideration  is 
clear.  Services  long  and  arduous  were  contemplated  as  probable,  by  both 
parties,  at  the  time  the  contract  was  executed.  But  the  object  of  pursuit  was 
already  attained.  No  services  were  required  under  the  contract,  and  for  those 
which  Allen  had  rendered  to  Hammond  prior  to  it  regular  charges  seem  to 
have  been  made.  It  is  true  the  amount  of  services  required  by  the  agent,  was 
uncertain.  He  took  upon  himself  this  contingency;  and  had  not  the  claim 
been  allowed  by  the  Portuguese  government,  until  after  the  contract,  he  would 
have  been  entitled  to  his  commissions,  however  small  his  agency  might  have 
been,  in  producing  the  result.  This,  it  may  be  supposed,  was  a  contingency 
within  the  contemplation  of  the  parties  at  the  time  of  the  contract;  so  that, 
unconnected  with  other  circumstances,  the  smallness  of  the  service  rendered 
could  have  constituted  no  ground  on  which  to  set  aside  the  contract.  But  no 
one  can  for  a  moment  believe  that  Hammond  intended  to  give  to  his  agent 
nearly  ten  thousand  dollars,  on  the  contingency  of  his  claim  having  been  al- 
lowed at  the  time  of  the  contract.  And  it  is  equally  clear,  that  his  agent 
under  such  a  circumstance,  had  no  expectation  of  receiving  that,  or  any  other 
amount  of  compensation.  The  contract  does  not  provide  for  such  a  case ;  and 
it  could  not  have  been  within  the  contemplation  of  either  party."  Services 
were  made  the  basis  of  the  compensation  agreed  to  be  paid ;  but  the  allow- 
ance of  the  claim  superseded  all  services  in  the  case.  The  equity  of  the  com- 
plainant is  so  obvious,  that  it  is  difficult  to  make  it  more  clear  by  illustration. 
No  case,  perhaps,  has  occurred,  or  can  be  supposed  where  the  principle  on 
w^hich  courts  of  equity  give  relief,  is  more  strongly  presented  than  in  this 
case.  The  contract  was  entered  into  through  the  mistake  of  both  parties; 
it  imposes  great  hardship  and  injustice  on  the  appellee,  and  it  is  without  con- 
sideration. These  grounds,  either  of  which  in  ordinary  cases,  is  held  sufficient 
for  relief  in  equity,  unite  in  favour  of  the  appellee.  SupiX)se  a  life  estate  in 
land  be  sold,  and  at  the  time  of  the  sale,  the  estate  has  terminated  by  the 
death  of  the  person  in  whom  the  right  vested ;  would  not  a  court  of  equity 
relieve  the  purchaser?  If  the  vendor  knew  of  the  death,  relief  would  be  given 
on  the  ground  of  fraud ;  if  he  did  not  know  it,  on  the  ground  of  mistake.  In 
either  case,  would  it  not  be  gross  injustice  to  enforce  the  payment  of  the  con- 
sideration? If  a  horse  be  sold  which  is  dead,  though  believed  to  be  living 
by  both  parties,  can  the  purchaser  be  compelled  to  pay  the  consideration? 


Sec.  2)  SPECIFIC   APPLICATIONS   OF  THE    DOCTRINQ  155 

YOUNG  V.  COLE. 

(Court  of  Common  Pleas,  1837.    3  Bing.  N.  C.  724.) 

Action  for  money  paid  by  the  plaintiff  to  the  use  of  the  defendant, 
and  for  money  had  and  received  by  the  defendant  to  the  use  of  the 
plaintiff. 

The  plaintiff,  a  stock-broker,  was  employed  by  the  defendant  in 
April,  1836,  to  sell  for  him  four  Guatemala  bonds,  of  i254.  each. 
The  plaintiff,  in  three  or  four  days,  sold  them  to  Briant  for  £300., 
and  deducting  £1.  5s.  for  his  commission,  paid  the  defendant  £298.  15s. 
Briant,  who  was  conversant  with  the  usages  of  the  Stock  Exchange, 
kept  the  bonds  two  days,  and  then  sold  them  again. 

The  bonds  in  question  were  not  stamped.  But,  in  1829  the  Guate- 
mala government  had  issued  an  order,  which  was  advertised  in  the 
London  newspapers,  requiring  the  holders  of  such  bonds  to  produce 
them,  and  have  them  stamped  by  an  agent  of  that  government  within 
a  certain  time ;  in  default  of  which  they  would  not  be  recognised  by 
the  state.  Evidence  of  the  advertisement  was  offered  and  rejected: 
but  it  was  proved  that  since  that  time,  unstamped  Guatemala  bonds 
were  not  a  marketable  commodity  on  the  Stock  Exchange. 

Upon  that  ground,  Briant's  vendee  soon  returned  the  bonds  in  ques- 
tion. Briant,  representing  the  matter  to  the  plaintiff,  the  plaintiff,  with- 
out communicating  with  the  defendant,  or  returning  the  bonds,  refund- 
ed what  Briant  had  paid  him,  and  now  sought  to  recover  the  amount 
which  he  had  himself  paid  over  to  the  defendant. 

The  defendant  upon  being  applied  to,  wrote  to  say  that  he  was  agent 
only  as  to  a  part  of  the  bonds ;  but  that  if  the  payment  had  been  made 
for  his  own  part,  he  would  desire  his  clerk  to  reimburse  the  plaintiff. 
At  the  trial  he  did  not  shew  that  all  the  bonds  were  not  his. 

The  plaintiff  could  find  no  one  in  this  country  who  had  authority 
now  to  stamp  the  bond ;  but  one  witness  said  he  had  procured  a  stamp 
to  bonds  of  the  same  description. 

Both  parties,  at  the  time  of  the  transaction,  were  ignorant  that  a 
stamp  was  necessary.  It  was  proved  that  brokers  on  the  Stock  Ex- 
change do  business  as  principals,  in  dealing  with  foreign  stock,  and 


These  are  cases  in  which  the  parties  enter  into  the  contract,  under  a  material 
mistake  as  to  the  subject-matter  of  it.  In  the  first  case  the  vendor  intended 
to  sell,  and  the  vendee  to  purchase  a  subsisting  title,  but  which  in  fact  did 
not  exist;  and  in  the  second,  a  horse  was  believed  to  be  living  but  which 
was  in  fact  dead.  If  in  either  of  these  cases,  the  payment  of  the  purchase 
money  should  be  required,  it  would  be  a  payment  without  the  shadow  of  con- 
sideration ;  and  no  court  of  equity  is  believed  ever  to  have  sanctioned  such 
a  principle.  And  so  in  the  case  under  consideration;  if  Hammond  should 
be  held  liable  to  pay  the  demand  of  the  appellant,  it  would  be  without  con- 
sideration." 

See  also  Woodward  v.  Cowing  (1816)  13  Mass.  216;    Kaney  v.  Boyd  (1S65) 
39  111.  24. 


156  BENEFITS   CONFERRED   BY   MISTAKE  -  (Ch.  2 

are  liable  to  be  expelled  if  they  do  not  make  good  their  differences. 
The  defendant's  name  was  not  mentioned  by  the  plaintiff  to  Briant. 

On  behalf  of  the  defendant,  it  was  objected  at  the  trial  before  Tin- 
dal,  C.  ].,  that  under  these  circumstances  the  plaintiff  could  not  recover 
on  the  declaration  for  money  paid  or  money  had  and  received;  but 
should  have  declared  specially  on  the  implied  warranty  by  the  defend- 
ant that  the  bonds  he  offered  for  sale  were  marketable  bonds.  Where- 
upon, a  verdict  was  taken  for  the  plaintiff  for  the  amount  the  defend- 
ant had  received  from  him ;  with  leave  for  the  defendant  to  move  to 
set  the  verdict  aside  and  enter  a  nonsuit  instead. 

A  rule  nisi  was  allowed. 

TiNDAL,  C.  J.  It  appears  to  me,  that  the  sum  for  which  the  ver- 
dict has  been  given,  is  properly  called  money  received  by  the  defend- 
ant to  the  use  of  the  plaintiff.  The  money  which  the  plaintiff  deliv- 
ered to  the  defendant  was  his  own  money,  for  he  had  sold  the  bonds 
as  a  principal  to  Briant,  and  was  subject  to  all  the  responsibilities  of 
a  principal.  He  delivered  the  money  to  the  defendant  on  an  under- 
standing that  the  bonds  he  had  received  from  the  defendant  were 
real  Guatemala  bonds,  such  as  were  salable  on  the  Stock  Exchange. 
It  seems,  therefore,  tliat  the  consideration  on  which  the  plaintiff  paid 
his  money  has  failed  as  completely  as  if  the  defendant  had  contracted 
to  sell  foreign  gold  coin  and  had  handed  over  counters  instead.  It 
is  not  a  question  of  warranty ;  but  whether  the  defendant  has  not  de- 
livered something  which,  though  resembling  the  article  contracted  to 
be  sold,  is  of  no  value. 

The  remaining  question  is,  whether  the  plaintiff  had  a  right  to  re- 
scind the  contract  he  had  entered  into  with  Briant.  It  is  to  be  observed 
that  in  that  contract  the  defendant's  name  was  never  used ;  there  was 
no  contract  between  him  and  Briant ;  the  plaintiff  was  the  only  per- 
son known  to  Briant.  But  stopping  short  of  that,  the  universal  custom 
of  the  Stock  Exchange  would  authorize  the  plaintiff  to  rescind  the 
contract  without  consulting  the  defendant ;  and  the  defendant  has 
been  in  no  respect  damaged  by  what  the  plaintiff  has  done. 

There  is,  however,  another  ground  on  which  the  verdict  stands 
clear  of  objection ;  that  is,  that  after  the  defendant  was  aware  of  all 
that  had  been  done,  he  wrote  to  say  that  if  the  bonds  were  his  own, 
he  would  send  his  clerk  to  pay  the  plaintiff  the  amount.  Having  omit- 
ted at  the  trial  to  shew  that  he  held  them  in  the  capacity  of  agent,  as 
he  had  asserted,  his  letter  is  a  ratification  of  what  the  plaintiff  had 
done,  and  the  verdict  ought  not  to  be  disturbed. 

Park,  J.,  concurred. 

BosANQUET,  JJ^  I  agree  in  the  principle  of  the  cases  which  have 
been  cited  as  to  breach  of  warranty,  but  this  is  not  a  case  of  that  de- 
scription.    Here,  no  consideration  has  been  given  for  the  money  re- 

72  A  portion  of  the  opinion  of  Bosanquet,  J.,  and  the  concurring  opinion  of 
Coltman,  J.,  are  oiiiitted. 


Sec.  2)  SPECIFIC  APPLICATIONS   OF  THE    DOCTRINE  157 

ceived  by  the  defendant :   the  bonds  he  deHvered  to  tlie  plaintiff  were 
not  Guatemala  bonds-,  but,  on  the  Stock  Exchange,  worthless  paper; 

and  the  payment  made  by  the  plaintiff  to  Briant  was  not  voluntary. 

*     *     * 

Rule  discharged. 


WATSON  V.  CRESAP. 

(Court  of  Appeals  of  Kentucky,  1841.     1  B.  Men.  195,  36  Am.  Dec.  572.) 

EwiNG,  J.'^  This  is  an  action  of  assumpsit,  brought  by  the  appel- 
lees against  the  appellants,  for  the  consideration  paid  for  a  hundred 
dollar  bank  bill,  on  the  Bank  of  the  United  States,  passed  by  the  ap- 
pellants to  the  appellees,  and  which  is  alleged  to  be  a  counterfeit. 
The  suit  was  brought  in  a  short  time  after  the  bill  was  passed  to  the 
appellees,  and  tlie  counterfeit  note  is  exhibited  in  the  record. 

The  declaration  contains  three  counts,  the  first  a  special  count,  which 
alleges  that  the  defendants  were  indebted  to  the  plaintiffs  two  hundred 
dollars,  and  paid  them  in  part,  in  a  hundred  dollar  bill  on  the  United 
States  Bank,  which  they  assumed  to  be  genuine,  when  the  same  was 
counterfeit  and  worthless. 

The  second  and  third  are  counts  in  indebitatus  assumpsit;  the  sec- 
ond, for  property  and  bank  bills  sold  and  delivered;  the  third,  for 
money  had  and  received  for  the  use  of  the  plaintiffs. 

We  think  the  declaration  is  substantially  good,  and  the  proof  was 
competent,  and  justified  the  verdict  of  the  jury. 

It  must  be  presumed  that  he  who  passes  a  bill  as  money,  passes  it 
as  genuine,  and  the  law  implies  an  assumpsit  or  warranty  that  it  is  so. 
Markle  v.  Hatfield,  2  Johns.  458,  3  Am.  Dec.  446;  Herrick  v.  Whit- 
ney, 15  Johns.  241. 

And  if  the  bill  should  be  counterfeit  and  worthless,  this  implied 
promise  is  immediately,  upon  passing  the  bill,  broken,  and  an  action 
lies  for  its  breach ;  nor  does  it  matter  whether  he  who  passes  it  knows 
that  it  is  counterfeit  or  not.  2  Johns.  458,  3  Am.  Dec.  446,  supra. 
The  action  is  not  an  action  for  a  fraud,  but  for  the  breach  of  promise 
implied  by  law.  And  to  sustain  this  form  of  declaring,  it  would  cer- 
tainly be  unnecessary  to  prove  that  the  note  was  tendered  back,  as  it 
goes  for  a  breach  of  promise,  and  not  for  a  restitution  of  the  consid- 
eration upon  a  disaffirmance  of  the  contract  of  payment. 

As  the  first  count,  in  the  case  under  consideration,  is  a  count  on  the 
implied  promise,  the  proof  justified  the  recovery  without  any  evidence 
that  the  bill  was  tendered  back  to  the  defendants  before  suit  brought, 
and  the  motion  to  instruct  the  jury,  as  in  case  of  a  non-suit,  was  prop- 
erly overruled. 

We  are  also  satisfied,  that  if  money  or  other  bills,  which  pass  and 
are  received  as  money,  be  the  consideration  given  for  a  counterfeit 

78  A  portion  of  the  opinion  is  omitted. 


158  BENEFITS  CONFERRED  BY   MISTAKE  (Ch.  2 

bill,  that  it  may  be  recovered  back  on  an  indebitatus  count,  for  so  much 
money  had  and  received.  Payment  for  such  a  .bill  must  be  regarded 
as  a  payment  by  mistake  for  a  thing  of  no  value,  but  which  was,  at 
the  time  it  was  received,  believed  to  be,  and  imported  on  its  face  to  be 
of  intrinsic  worth.     2  Johns.  458,  3  Am.  Dec.  446. 

But  this  form  of  declaring  proceeds  on  the  ground  of  a  disaffirmance 
of  the  contract  and  a  restitution  of  the  thing  given  in  exchange.  It 
is  an  equitable  remedy,  and  to  entitle  the  plaintiff  to  recover,  if  any 
thing  of  value  has  been  received,  it  must  be  shown  that  it  was  tendered 
back  before  the  action  was  brought. 

A  counterfeit  bill  is  certainly  of  no  intrinsic  value,  it  would  be  as 
worthless  in  the  hands  of  the  defendants  as  in  that  of  the  plaintiffs, 
and  according  to  the  rule  laid  down,  it  would  seem  unnecessary  to 
show  that  it  was  tendered  back,  even  in  this  form  of  declaring.  But 
whether  it  was  or  not,  it  is  not  now  necessary  to  determine,  as  the 
recovery  was  proper  on  the  first  count.     *     *     * 

The  judgment  of  the  Circuit  Court  is  affirmed  with  costs.'^* 


OTIS  v.  CULLUM.* 

(Supreme  Court  of  the  United  States,  1S75.     92  U.  S.  447,  23  L.  Ed.  496.) 

Error  to  the  Circuit  Court  of  the  United  States  for  the  District  of 
Kansas. 

Mr.  Justice  Swayne;  delivered  the  opinion  of  the  court. 

This  case  presents  but  a  single  point  for  consideration.  In  the  court 
below,  the  defendant  demurred  to  the  plaintiff's'  petition.  The  court 
sustained  the  demurrer.  The  plaintiffs  elected  to  stand  by  it.  The 
court  thereupon  gave  judgment  for  the  defendant. 

It  is  not  alleged  that  there  was  any  fraud  on  the  part  of  the  bank  or 
its  agent  in  selling  the  bonds  in  question :  on  the  contrary,  their  good 
faith  is  expressly  admitted.  The  plaintiffs'  declaration,  or  petition  as  it 
is  called,  is  not  framed  upon  the  theory  of  bad  faith,  and  a  recovery 
is  not  sought  upon  that  ground. 

The  representations  made  by  the  agent  of  the  bank  to  the  plaintiffs 
when  they  bought  the  bonds  are  largely  set  out ;  but  while  it  is  alleged 

T4  In  Meyer  v.  Richards  (1895)  163  U.  S.  385,  16  Sup.  Ct.  1148,  41  L.  Ed.  199, 

the  defendant  sold  to  the  plaintiff  thirteen  bonds  of  the  state  of  Louisiana, 
delivered  them  to  him,  and  received  from  him  paym.ent  for  them  in  full.  Both 
parties  contemplated  the  purchase  and  delivery  of  valid  and  lawful  obligations 
of  the  state,  and  both  regarded  the  bonds  so  delivered  as  valid  and  lawful 
obligations.  It  turned  out  that  the  bonds  were  absolutely  void,  having  never 
been  lawfully  put  into  circulation.  Plaintiff  thereupon  sued  defendant  in  the 
Circuit  Court  of  the  United  States  for  the  Eastern  District  of  Louisiana,  to 
recover  the  purchase  money  paid  for  them.  It  vvas  held  that  the  plaintiff 
could  recover  the  sums  paid  by  him  for  the  bonds.  Mr.  Justice  White  in  au 
elaborate  opinion  reviews  the  civil  law  authorities  as  well  as  those  of  the 
common  law,  and  concludes  that  they  both  sustain  a  recovery  by  the  plaintiff. 
*  The  principal  case,  which  might  proi)erly  be  considered  under  mistake  of 
law,  is  inserted  here  for  purposes  of  contrast. 


Sec.  2)  SPECIFIC  APPLICATIONS   OF  THE    DOCTRINE  159 

they  were  made  in  good  faith,  and  beHeved  by  both  parties  to  be  true, 
it  is  not  averred  that  they  were  intended  to  be,  or  were  understood  by 
either  party  to  be,  a  warranty.  The  points  of  fraud  and  warranty  may, 
therefore,  be  laid  out  of  view.  They  are  in  no  sense  elements  in  the 
case.  This  simplifies  the  character  of  the  controversy.  With  these 
considerations  eliminated,  what  is  left  of  the  case  may  be  stated  in  a 
few  words. 

The  legislature  of  Kansas  passed  two  acts,  under  which  the  city 
of  Topeka  was  authorized  to  issue  bonds  for  certain  specified  pur- 
poses, the  amount  in  each  case  to  be  within  the  limit  prescribed.  A 
hundred  coupon  bonds  of  one  thousand  dollars  each,  payable  to  a 
party  named  or  bearer,  were  executed,  and  delivered  to  that  party. 
They  became  the  property  of  the  First  National  Bank  of  Topeka. 
That  bank  put  them  upon  the  market,  and  disposed  of  them.  Eighteen 
of  them  were  sold  to  the  plaintiffs  in  error  for  the  sum  of  $12,852, 
and  the  residue  to  another  party.  There  was  default  in  the  payment 
of  interest.  The  other  party  brought  suit.  This  court  held  that  the 
legislature  had  no  power  to  pass  the  acts,  and  that  the  bonds  were, 
therefore,  void.  Loan  Association  v.  Topeka,  20  Wall.  655,  22  L.  Ed. 
455.  This  suit  was  brought  by  the  plaintiffs  in  error  to  recover  from 
the  receiver  the  amount  paid  to  the  bank  for  the  eighteen  bonds,  with 
interest  upon  that  sum.  The  ground  relied  upon  is  failure  of  consid- 
eration. The  question  presented  for  our  determination  is,  whether, 
upon  this  state  of  facts,  they  have  a  valid  cause  of  action. 

In  Lambert  v.  Heath,  15  Mees.  &  Wels.  486,  the  defendant  bought 
for  the  plaintiff  certain  "certificates  of  Kentish-coast  railway-scrip," 
and  received  from  him  the  money  for  them.  Subsequently  the  direc- 
tors repudiated  the  scrip  upon  tlie  ground  that  it  had  been  issued  by 
the  secretary  without  authority.  The  enterprise  to  which  it  related 
was  abandoned.  The  action,  which  was  for  money  had  and  received, 
was  thereupon  brought  to  recover  back  what  had  been  paid  for  the 
scrip.  The  court  put  it  to  the  jury  to  say  whether  the  scrip  bought  was 
"real  Kentish  railway-scrip."  A  verdict  was  found  for  the  plaintiff 
upon  this  issue.  A  new  trial  was  moved  for,  the  defendant  insisting 
that  the  court  had  misdirected  the  jury.  After  hearing  the  argument, 
the  court  said,  "The  question  is  simply  this:  Was  what  the  parties 
bought  in  the  market  Kentish-coast  railway-scrip?  It  appears  that  it 
was  signed  by  the  secretary  of  the  company ;  and  if  this  was  the  only 
Kentish-coast  railway-scrip  in  the  market,  as  appears  to  have  been 
the  case,  and  one  person  chooses  to  sell,  and  another  to  buy,  that  then 
the  latter  has  got  all  that  he  contracted  to  buy.  That  was  the  question 
for  the  jury ;  but  it  was  not  so  left  to  them.  The  rule  must,  therefore, 
be  absolute  for  a  new  trial." 
The  judges  were  unanimous. 

Here,  also,  the  plaintiffs  in  error  got  exactly  what  they  intended  to 
buy,  and  did  buy.     They  took  no  guaranty.     They  are  seeking  to  re- 


160  BENEFITS   CONFERRED   BY   MISTAKE  (Ch.  2 

cover,  as  it  were,  upon  one,  while  none  exists.  They  are  not  clothed 
with  the  rights  which  such  a  stipulation  would  have  given  them.  Not 
having  taken  it,  they  cannot  have  the  benefit  of  it.  The  bank  cannot 
be  charged  with  a  liability  which  it  did  not  assume. 

Such  securities  throng  the  channels  of  commerce,  which  they  are 
made  to  seek,  and  where  they  find  their  market.  They  pass  from  hand 
to  hand  like  bank-notes.  The  seller  is  liable  ex  delicto  for  bad  faith ; 
and  ex  contractu  there  is  an  implied  warranty  on  his  part  that  they  be- 
long to  him,  and  that  they  are  not  forgeries.  Where  there  is  no  ex- 
press stipulation,  there  is  no  liability  beyond  this.  If  the  buyer  de- 
sires special  protection,  he  must  take  a  guaranty.  He  can  dictate  its 
terms,  and  refuse  to  buy  unless  it  be  given.  If  not  taken,  he  cannot 
occupy  the  vantage-ground  upon  which  it  would  have  placed  him. 

It  would  be  unreasonably  harsh  to  hold  all  those  through  whose 
hands  such  instruments  may  have  passed  liable  according  to  the  prin- 
ciples which  the  plaintififs  in  error  insist  shall  be  applied  in  this  case. 
Judgment  affirmed.'^' 


MARTIN  V.  McCORMICK.      ' 
(Court  of  Appeals  of  New  York,  1S54.     8  N.  Y.  331.) 

The  appeal  in  this  action  was  from  a  judgment  of  the  superior  court 
of  the  city  of  New  York.  The  questions  decided  arose  upon  the 
pleading.    The  following  were  the  facts : 

In  1839,  the  plaintiff  became  the  owner  in  fee  simple  of  a  house 
and  lot  in  the  city  of  New  York,  worth  six  thousand  dollars.  On  the 
first  day  of  October,  1842,  they  were  sold  by  order  of  the  Mayor,  Al- 
dermen and  Commonalty  of  the  city,  for  the  taxes  assessed  upon 
them  for  the  years  1835,  1836  and  1838,  amounting  in  the  aggregate 
including  interest  and  costs  to  $105.70.  The  defendant  bid  them  in 
for  the  term  of  one  hundred  years,  and  thereby  became  entitled  to  a 
lease  thereof  on  the  first  day  of  October,  1844,  no  redemption  having 
then  been  made.  In  fact  he  did  not  obtain  the  lease,  supposing  that 
it  was  unnecessary  for  him  to  receive  it  before  he  should  give  the 

7G  In  Meyer  v.  Richards  (1895)  163  U.  S.  385,  414,  16  Sup.  Ct.  1148,  1158,  41 
L.  Ed.  199  (see  supra,  page  158,  note)  White,  J.,  discussing  Otis  v.  Cullum,  said: 
"If  this  [Meyer  v.  Richards]  were  a  case  where  a  vendee  claimed  to  recover 
back  the  price  paid  by  him  on  a  purchase  of  negotiable  securities,  which  pass 
by  delivery  from  hand  to  hand,  on  the  averment  that  after  the  sale  it  had  de- 
veloped that  they  were  not  valid  (although  not  forgeries),  because  the  law 
under  which  they  had  been  issued  was  constitutionally  void  or  ultra  vires,  the 
claim  of  implied  warranty  of  existence  would  be  without  merit,  for  the  reason 
that  such  a  state  of  fact  would  present  a  case  of  a  sale  of  securities  whether 
valid  or  invalid,  hence  engendering  no  implication  of  warranty  of  existence. 
Under  the  state  of  facts  thus  supposed,  the  purpose  of  the  parties  to  make  a 
contract  of  that  nature  would  legally  result  from  the  fact  that  they  were  both 
necessarily  equally  chargeable  with  notice  of  want  of-  power,  and  therefore 
would  be  both  presumed  to  have  acted  with  reference  to  such  knowledge. 
This  is  Otis  v.  Cullum." 


Sec.  2)  SPECIFIC  APPLICATIONS   OF  THE    DOCTRINE  16] 

notice  to  the  tenant  to  redeem  under  the  provisions  of  chapter  230 
of  the  Laws  of  1841.  On  the  twelfth  day  of  October,  1844,  he  caused 
the  notice  required  by  the  statute,  that  the  premises  had  been  sold 
for  the  taxes  and  conveyed  to  him  for  one  hundred  years,  and  that 
unless  he  redeemed  them  within  six  months  the  conveyance  would  be- 
come absolute.  The  plaintiff  a  few  days  after  the  expiration  of  six 
months  from  the  service  of  the  notice,  paid  into  the  ofilce  of  the  comp- 
troller of  the  city  for  the  defendant  and  in  redemption  of  the  prem- 
ises, the  sum  necessary  for  that  purpose,  but  shortly  after  the  pay- 
ment the  comptroller  and  the  defendant  informed  him  that  the  payment 
was  at  too  late  a  day  for  redeeming,  and  that  the  conveyance  to  the 
defendant  had  become  absolute,  and  the  comptroller  repaid  to  him  the 
money,  the  defendant  refusing  to  receive  it. 

On  the  first  of  July,  1845,  the  conveyance  in  pursuance  of  the  bid 
at  the  tax  sale,  was  made  to  the  defendant. 

On  the  third  of  July,  1845,  the  plaintiff  believing  the  information 
conveyed  in  the  notice  served  upon  him  in  October,  1844,  was  true, 
and  that  the  time  to  redeem  the  premises  from  the  sale  had  expired 
before  he  paid  the  money  to  the  comptroller  in  April,  1845,  and  that 
the  defendant  had  thereby  acquired  an  absolute  title  to  the  premises  for 
the  term  of  one  hundred  years,  he  purchased  the  lease  and  such  term 
of  the  defendant,  and  paid  him  therefor  $1,800.  This  sum  he  sought 
to  recover  as  money  received  by  the  defendant  to  his  use. 

The  defendant  did  not  deny  the  fact  that  at  the  time  the  notice 
was  given,  October  12,  1844,  the  conveyance  had  not  been  made  to 
him,  but  alleged  that  he  was  informed  by  the  clerks  in  the  comptrol- 
ler's office  that  it  was  ready  for  him  and  that  it  made  no  difference 
whether  he  had  it  or  not,  and  that  at  the  time  he  sold  his  lease  to  the 
plaintiff,  he  was  not  aware  that  his  conveyance  had  not  become  ab- 
solute. He  also  insisted  that  the  lease  was  to  be  construed  as  of  full 
force  from  its  date,  the  first  day  of  October,  1844,  when  he  was  enti- 
tled to  receive  it. 

The  action  was  tried  before  Mr.  Justice  Mason,  at  special  term, 
who  ordered  a  judgment  for  the  defendant  which  was  affirmed  at  gen- 
eral term.     (See  4  Sandf.  366.)     The  plaintiff  appealed  to  this  court. 

Johnson,  J.'^*'  In  this  case  the  defendant  was  in  possession  of  an 
instrument  under  the  seal  of  the  corporation  of  the  city  of  New  York, 
by  which  there  purported  to  be  created  in  him  an  estate  for  the  term 
of  one  hundred  years,  in  a  house  and  lot  of  land  in  the  city  of  New 
York.  The  plaintiff  was  at  the  time  in  possession  of  the  house  and 
lot,  claiming  to  be  and  being  seized  thereof  in  fee,  unless  the  lease  held 
by  the  defendant  created  a  valid  term  for  years  in  him.  The  defend- 
ant as  matter  of  fact  believed  the  lease  did  give  him  the  term  which  it 
purported  to  convey.    The  plaintiff  also  so  believed,  and  thereupon  a 

7«A  portion  of  the  opinion  is  omitted. 

TUUBS.QUASI  CONT. — 11 


1G2  BENEFITS   CONFERRED   BY   MISTAKE  (Ch.  2 

bargain  was  entered  into  between  them  in  pursuance  of  which  tlie 
plaintiff  paid  the  defendant  $1,800,  and  received  in  consideration  there- 
of an  assignment  of  the  term.  The  plaintiff  now  seeks  to  recover  back 
this  money  upon  the  general  ground  that  the  defendant,  notwithstand- 
ing his  apparent  interest  in  the  premises,  had  no  estate  in  them  what- 
ever, the  lease  from  the  corporation  being  invalid,  and  that  he  pur- 
chased the  lease  and  paid  the  money  under  an  entire  misapprehension 
and  mistake  as  to  the  facts  upon  which  depended  the  validity  or  in- 
validity of  the  defendant's  lease.     *     *     * 

He  [the  plaintiff]  has  entered  into  a  contract  which  has  been  exe- 
cuted, and  his  position  is  that  of  one  seeking  to  rescind  the  contract  and 
get  back  the  consideration  paid.  No  case  of  fraud  is  pretended ;  Mc- 
Cormick  and  the  plaintiff  both  believed  that  the  lease  was  valid,  and  one 
bought  and  the  other  sold  under  that  belief. 

The  parties  did  not  deal  with  each  other  upon  the  footing  of  the 
compromise  of  a  doubtful  or  doubted  claim,  but  upon  the  ground  of  a 
conceded  right  in  the  defendant.  He  was  assumed  by  both  of  them 
to  have  become  the  owner  of  a  term  for  one  hundred  years  in  the 
premises  in  question,  and  the  parties  dealt  with  each  other  upon  that 
basis  for  the  sale  and  purchase  of  that  interest. 

Then  as  to  the  subject-matter  upon  which  the  sale  was  to  operate,  the 
plaintiff  having  actually  redeemed  the  premises  before  the  execution 
of  the  lease  to  the  defendant,  the  authority  to  convey  which  the  cor- 
poration had  acquired  was  defeated,  and  their  lease  was  wholly  inop- 
erative to  confer  upon  the  defendant  any  right  whatever,  and  had  no 
more  significance  or  efficacy  in  law  than  if  it  had  remained  unexe- 
cuted. It  follows  that  the  assignment  executed  by  McCormick  to  Mar- 
tin did  not  c^"vey  to  him  any  right.  The  subject-matter  to  which  it 
related  had  no  existence.  The  plaintiff,  in  my  judgment,  occupies  the 
same  position  which  any  other  person  would  have  occupied  who  had 
dealt  with  the  defendant  for  the  term  of  one  hundred  years  and  be- 
come the  purchaser  of  it. 

Now  the  term  which  was  the  subject  of  the  contract,  contrary  to 
the  supposition  of  both  parties  had  no  existence,  and  in  all  that  class 
of  cases,  where  there  is  mutual  error  as  to  the  existence  of  the  sub- 
ject-matter of  the  contract,  a  rescission  may  be  had.  (1  Story's  Eq.,  §§ 
141,  142,  143.)  The  case  of  Hitchcock  v.  Giddings  (4  Price,  135),  was 
a  bill  by  a  vendee  of  a  remainder  in  fee  expectant  upon  an  estate 
tail.  A  recovery  had  been  suft'ered  at  the  time  of  the  contract,  though 
both  parties  were  ignorant  of  the  fact,  and  there  had  been  no  fraud 
from  knowledge  or  concealment  of  the  fact,  and  it  was  decreed  that  a 
bond  given  for  the  purchase-money  should  be  delivered  up,  and  the 
interest  which  had  been  paid  upon  it  should  be  refunded. 

I  do  not  see  how  the  principle  of  this  case  can  be  distinguished 
from  that  at  bar ;  for  surely  it  can  be  no  ground  of  dift'erence  in  result, 
that  in  the  one  case  an  estate  which  had  once  existed  had,  at  the  time 


Sec.  2)  SPECIFIC  APPLICATIONS   OF  THE    DOCTRINE  1G3 

of  the  contract,  come  to  an  end,  while  in  the  other,  the  estate,  which 
was  the  subject  of  the  contract,  had  no  existence  at  any  time.  Allen 
V.  Plammond,  11  Pet.  71,  9  L.  Ed.  633. 

The  judgment  below  should  be  reversed,  and  the  sale  be  declared  re- 
scinded,  etc. 

Mason,  J.,  was  in  favor  of  modifying  the  judgment  of  the  Superior 
Court  so  as  to  dismiss  the  complaint  witliout  prejudice  to  an  action 
for  specific  relief. 

Judgment  reversed,  etc. 


TAYLOR  V.  HARE. 
(Court  of  Common  Pleas,  1805.     1  Bos.  &  P.  [N.  R.]  2G0.) 

This  was  an  action  for  money  had  and  received,  which  came  on  to 
be  tried  before  the  Lord  Chief  Justice  at  the  sittings  after  last  Hilary 
term,  when  a  verdict  was  found  for  the  plaintiff  for  £425.  subject  to 
the  opinion  of  tlie  Court  upon  the  following  case: 

On  the  12th  of  September,  1791,  the  defendant  took  out  a  patent 
for  the  invention  of  an  apparatus  for  preserving  the  essential  oil  of 
hops  in  brewing.  By  articles  of  agreement,  dated  5th  of  November, 
1792  (which  were  set  out  at  length  at  the  end  of  the  case),  and  made 
between  the  defendant  of  the  one  part,  and  the  plaintiff  and  his  said 
late  partner  of  the  other  part,  reciting  the  defendant's  patent,  and  that 
it  gave  him  the  sole  power,  privilege,  and  authority  of  using,  exercis- 
ing, and  vending  his  said  invention  for  the  term  of  14  years,  the  de- 
fendant granted  to  the  plaintiff  and  his  said  late  partner  the  privilege 
of  making,  using  and  exercising  the  said  invention  for  the  residue  of 
the  said  term  of  14  years,  and  in 'consideration  thereof  the  plaintiff 
and  his  partner  covenanted  that  they  would  secure  to  be  paid  to  the 
defendant  during  the  said  term  an  annuity  of  ilOO.,  and  would  give 
their  bond  for  that  purpose,  and  a.  bond  was  accordingly  given,  con- 
ditioned for  the  payment  of  the  said  annuity.  The  plaintiff  and  his 
said  late  partner  used  the  apparatus  (for  the  making  and  preparing  of 
which  they  paid  a  distinct  price)  from  the  date  of  the  said  agreement 
until  the  25th  day  of  March,  1797,  and  during  all  that  time  regularly 
paid  the  said  annuity  to  the  said  defendant.  The  defendant  was  not 
the  inventor  of  the  invention  for  which  he  obtained  his  patent.  The 
invention  was  not  new  as  to  the  public  use  and  service  thereof  in  Eng- 
land, but  it  was  the  invention  of  one  Thomas  Sutton  Wood,  and  had 
been  publicly  used  in  England  by  said  Wood  and  others  before  the  de- 
fendant obtained  his  patent.  But  the  patent  had  never  been  repealed. 
The  amount  of  the  annuity  which  they  had  paid  was  £425.  If  the 
Court  should  be  of  opinion  that  the  plaintiff  was  entitled  to  recover 
back  the  money  which  was  paid  on  the  bond,  the  verdict  was  to  stand. 
If  the  Court  should  be  of  a  contrary  opinion,  a  nonsuit  was  to  be  en 
tered. 


It54  BENEFITS   CONFERRED   BY   MISTAKE  (Ch.  2 

B£.yley,  Serjt.,  for  the  plaintiff.  To  support  the  present  action  it 
is  not  necessary  to  prove  that  any  imposition  has  been  practised.  If 
it  appear  that  the  plaintiff  has  received  nothing  in  return  for  the 
money  which  he  has  paid,  he  is  entitled  to  recover  back  his  money  in 
this  form  of  action.  He  was  induced  to  pay  his  money  upon  the  sup- 
position that  the  defendant  had  the  power  of  communicating  some 
privilege.  But  as  it  now  appears  that  the  defendant's  invention  was 
not  new,  and  that  the  patent  was  therefore  void,  the  consideration 
upon  which  the  plaintiff'  paid  his  money  has  wholly  failed,  and  the 
plaintiff  has  derived  no  benefit  whatever.  Where  an  estate  is  conveyed, 
the  vendor  professes  to  convey  nothing  but  his  title  to  that  estate. 
But  here  the  thing  itself  which  was  the  subject  of  the  agreement  had 
no  existence.  It  was  the  understanding  of  all  parties  that  the  defend- 
ant was  entitled  to  a  patent-right ;  but  it  now  turns  out  tliat  they  were 
mistaken :  the  plaintiff  therefore  is  entitled  to  recover  the  money  which 
he  has  paid  under  a  mistake.  He  had  a  right  to  make  use  of  the  in- 
vention without  paying  any  thing  for  it.  The  defendant  has  no  right 
to  the  annuity,  and  indeed  he  has  already  failed  in  an  action  on  the 
bond  in  which  the  validity  of  the  patent  was  put  in  issue. 

Sir  James  Mansfield,  Ch.  J.  (stopping  Cockell,  Serjt,  for  the  de- 
fendant). It  is  not  pretended  that  any  action  like  the  present  has  ever 
been  known.  In  this  case  two  persons  equally  innocent  make  a  bar- 
gain about  the  use  of  a  patent,  the  defendant  supposing  himself  to 
be  in  possession  of  a  valuable  patent-right,  and  the  plaintiff  supposing 
the  same  thing.  Under  these  circumstances  the  latter  agrees  to  pay 
the  former  for  the  use  of  the  invention,  and  he  has  the  use  of  it ;  non 
constat  what  advantage  he  made  of  it ;  for  any  thing  that  appears  he 
may  have  made  considerable  profit.  These  persons  may  be  considered 
in  some  measure  as  partners  in  the  benefit  of  this  invention.  In  con- 
sideration of  a  certain  sum  of  money  the  defendant  permits  the  plain- 
tiff to  make  use  of  this  invention,  which  he  would  never  have  thought 
of  using  had  not  the  privilege  been  transferred  to  him.  How  then 
can  we  say  that  the  plaintiff  ought  to  recover  back  all  that  he  has  paid  ? 
I  think  tliat  there  must  be  judgment  for  the  defendant. 

Heath,  J.  There  never  has  been  a  case,  and  there  never  will  be, 
in  which  a  plaintiff,  having  received  benefit  from  a  thing  which  has 
afterwards  been  recovered  from  him,  has  been  allowed  to  maintain 
an  action  for  the  consideration  originally  paid.  We  cannot  take  an 
account  here  of  the  profits.  It  might  as  well  be  said,  that  if  a  man 
lease  land,  and  the  lessee  pay  rent,  and  afterwards  be  evicted,  that  he 
shall  recover  back  the  rent,  though  he  has  taken  the  fruits  of  the  land. 

RooKE,  J.     I  am  of  the  same  opinion. 

Chambre,  J.  The  plaintiff  has  had  the  enjoyment  of  what  he  stip- 
ulated for,  and  in  this  action  the  Court  ought  not  to  interfere,  unless 
there  be  sometliing  ex  aequo  et  bono  which  shews  that  the  defendant 
ought  to  refund.  Here  both  parties  have  been  mistaken ;  the  defend- 
ant has  thrown  away  his  money  in  obtaining  a  patent  for  his  own 


Sec.  2)  SPECIFIC  APPLICATIONS   OF  THE    DOCTRINE  105 

invention ;  not  so  the  plaintiff,  for  he  has  had  the  use  of  another  per- 
son's invention  for  his  money.  In  the  case  of  Arkwright's  patent, 
which  was  not  overturned  till  very  near  the  period  at  which  it  would 
have  expired,  very  large  sums  of  money  had  been  paid;  and  though 
something  certainly  was  paid  for  the  use  of  the  machines,  yet  the  main 
part  was  paid  for  the  privilege  of  using  the  patent-right,  but  no  money 
ever  was  recovered  back  which  had  been  paid  for  the  use  of  that  pat- 
ent. I  am  therefore  of  opinion  that  judgment  of  nonsuit  should  be 
entered. 

Judgment  of  nonsuit.'^^ 

7  7  "In  an  action  by  a  licensor  against  a  licensee  to  recover  royalties  upon 
sales  made  under  an  exclusive  license  upon  an  invalid  patent,  which  was,  at 
the^  time  when  the  account  accrued,  apparently  valid  and  in  force,  and  from 
which  there  had  been  no  eviction,  the  invalidity  of  which  had  not  been  de- 
clared by  an  adjudication  under  legal  proceedings,  and  no  notice  had  been 
given  by  the  licensee  of  its  refusal  to  pay  on  account  of  its  defects,  such  in- 
A'alidity  is  no  defense  to  the  suit.  As  long  as  the  licensee  continues  to  manu- 
facture under  a  patent  presumably  valid,  without  having  given  notice  of  its 
invalidity  and  without  eviction,  he  is  presumed  to  manufacture  in  accordance 
with  his  license.  The  cases  of  IMarston  v.  Swett  a876)  66  N.  Y.  211,  23  Am. 
Eep.  43,  and  Id.  (1S80)  82  N.  Y.  526,  are  leading  authorities  to  this  effect.  The 
law  is  stated  in  Lawes  v.  Purser,  38  Eng.  Law  &  Eq.  Rep.  48,  6  El.  &  Bl,  930, 
by  Erie,  J.,  as  follows:  'If  the  plaintiff  believed  the  patent  to  be  valid,  and 
the  defendants  believed  so,  too,  it  seems  to  me  that  the  defendants  must  pay 
for  the  privilege  until  they  can  show  that  the  patent  has  been  rescinded  or 
revoked,  or  that  notice  has  been  given  to  the  plaintiff'  that  the  defendant  will 
not  pay  any  more  under  the  contract.'  White  v.  Lee  (C.  C.  1882)  14  Fed.  780; 
Birdsall  v.  Perego  (1865)  5  Blatchf.  251,  Fed.  Cas.  No.  1,435 ;  Stott  v.  Ruther- 
ford (1875)  92  U.  S.  107,  23  L.  Ed.  486 ;  Eureka  Co.  v.  Bailey  Co.  (1870)  11  Wall. 
488,  20  L.  Ed.  209."  Per  Shipman,  J.,  in  Holmes,  Booth  &  Haydens  v.  McGill 
(1901)  108  Fed.  238,  244,  47  C.  O.  A.  296. 

Where,  however,  there  is  a  sale  or  an  assignment  of  a  patent,  both  parties 
believing  the  same  to  be  valid,  the  authorities  are  in  conflict  on  the  question 
whether  the  purchase  money,  if  already  paid,  may  be  recovered  back,  or,  if 
such  purcliase  money  be  not  yet  paid,  whether  the  purchaser  may  resist  pay- 
ment, upon  a  discovery  that  the  patent  is  in  fact  void.  In  Smith  v.  Neale 
(1857)  2  C.  E.  (N.  8.)  67,  Willes,  J.,  delivering  the  judgment  of  the  court  said: 
"Such  a  contract  involves  no  warranty  that  the  invention  was  new,  or  was  a 
manufacture  within  the  statute  of  James,  but  merely  that  Her  Majesty  had 
gi-anted  to  the  plaintiff'  the  letters-patent  which  she  proposed  to  assign.  In 
short,  the  defendant  in  this  case,  as  in  Hall  v.  Conder,  2  C.  B.  (N.  S.)  22,  con- 
tracted for  the  use  of  the  plaintiff''s  right  such  as  it  was,  without  regard  to 
■whether  it  could  be  sustained  upon  litigation  or  not;  and  as  there  is  nothing 
"unreasonable  or  uncommon  in  such  a  bargain." 

Accord :    lliatt  v.  Twoney  (1836)  21  N.  C.  315. 

Contra — on  the  ground  of  failure  of  consideration:  Lester  v.  Palmer  (1862) 
4  Allen  (Mass.)  145;  Geiger  v.  Cook  (1842)  3  Watts  &  S.  (Pa.)  206;  Herzog 
V.  Hey  man  (1897)  151  N.  Y.  587,  45  N.  E.  1127,  56  Am.  St.  Rep,  646. 

Compare  Gilmore  v.  Aiken  (1875)  118  Mass.  94. 

In  Massachusetts  a  distinction  is  made  between  an  exclusive  license  and  a 
mere  license ;  the  former  being  assimilated  to  an  assignment  of  the  patent. 
Harlow  v.  Putnam  (1878)  124  Mass.  553 ;  Standard  Button  Fastening  Co.  v. 
Ellis  (1893)  159  Mass.  448,  34  N.  E.  682. 


166  BENEFITS   CONFERRED   BY    MISTAKE  (Ch.  2 

IV.  Mistake;  as  To  Nature  of  Subject-Matter  of  a 
Contract 

COX  V.  PRENTICE. 

(Court  of  King's  Bench,  1S15.    3  Maule  &  S.  345.) 

Assumpsit.  The  plaintiffs  declared  that  in  consideration  that  they 
would  buy  of  the  defendant  a  bar  of  silver,  the  defendant  undertook 
that  it  contained  4  oz.,  whereas  it  contained  only  2  oz.  There  were 
other  special  counts,  with  the  money  counts.  Plea,  non-assumpsit. 
At  the  trial  before  Lord  Ellenborough,  C.  J.,  at  the  London  sittings  the 
case  was  this : 

The  plaintiffs  were  gold  refiners,  and  the  defendant  was  a  watch- 
maker, and  had  a  correspondent  at  Gibraltar,  from  whom  he  was  in 
the  habit  of  receiving  broker!  metal.  His  correspondent  remitted  to 
him  a  bar  of  silver,  which  he  carried  to  the  plaintiffs'  house,  and  they 
melted  it  down  in  his  presence.  The  plaintiffs  afterwards  procured  it 
to  be  assayed  by  a  tliird  person,  who  was  paid  by  the  defendant ;  and 
the  plaintiffs  paid  to  the  defendant  £88.  and  a  fraction,  the  supposed 
value  of  the  silver,  according  to  the  assay-master's  certificate.  The 
defendant  informed  his  correspondent  of  what  had  been  done,  and  cred- 
ited him  in  his  account  with  the  amount.  The  plaintiffs  sold  the  silver 
to  a  house  at  Birmingham,  who  afterwards  returned  it,  representing 
that  it  did  not  answer  the  assay;  upon  which  the  plaintiffs  applied  to 
the  defendant  for  s  return  of  the  money,  offering  to  return  him  the 
silver ;  but  the  defendant  refused  to  return  the  money,  on  the  ground 
that  he  had  forwarded  his  account  to  his  correspondent,  in  which  he 
had  credited  him  with  the  full  sum.  It  appeared,  however,  that  the 
account  was  still  unsettled  between  them.  The  assay-master  proved 
that  he  received  a  small  piece  of  the  silver  for  the  purpose  of  assaying 
it;  that  he  by  his  assay  made  the  whole  4  oz.,  whereas  2  oz.  7  cwts. 
was  the  true  assay.  A  verdict  was  found  for  the  plaintiffs  for  the  dif- 
ference in  value  between  the  supposed  and  true  weight,  with  liberty 
to  the  defendant  to  move  for  a  nonsuit.  A  rule  nisi  was  accordingly 
obtained  in  Michaelmas  term  upon  two  grounds;  1st,  that  the  action 
would  not  lie  at  all  even  supposing  it  to  have  been  brought  against  the 
defendant's  principal ;  2dly,  supposing  it  would  lie  against  his  princi- 
pal, yet  it  would  not  against  the  defendant,  who  was  merely  an  agent, 
and  whose  situation  had  been  altered  between  the  time  of  the  sale  and 
action  by  his  having  accounted  for  the  sale  money  with  his  principal. 

Lord  Ellenborough,  C.  J.  I  take  it  to  be  clear  that  an  agent  who 
receives  money  for  his  principal  is  liable  as  a  principal  so  long  as  he 
stands  in  his  original  situation ;  and  until  there  has  been  a  change  of 
circumstances  by  his  having  paid  over  the  money  to  his  principal,  or 
done  something  equivalent  to  it.  Here  it  is  admitted  that  no  money 
has  been  paid  over  by  the  defendant  to  his  principal,  nor  has  there 


Sec.  2)  SPECIFIC   APPLICATIONS   OF  THE    DOCTRINE  1G7 

been  any  other  thing  done  by  him  to  create  a  change  of  circunistan<.es. 
The  only  question  then  is,  whether  the  action  lies  against  the  defend- 
ant, considering  it  as  if  it  were  an  action  against  the  principal.  Now 
this  is  a  case  of  mutual  innocence  and  equal  error,  which  is  not  an  un- 
usual case  for  money  had  and  received.  Much  of  the  argument  has 
been  raised  by  the  circumstance  of  a  third  person  having  been  intro- 
duced into  this  transaction ;  but  the  nature  of  the  commodity  made 
the  intervention  of  some  other  standard  than  the  parties'  own  judgment 
necessary.  And  whether  that  be  attained  by  means  of  a  pair  of  scales, 
or  any  other  common  measure,  or  whether  an  assay-master  be  em- 
ployed for  the  purpose,  being  equally  necessary,  it  can  make  no  dif- 
ference. Let  us  then  put  the  case  of  parties  agreeing  to  abide  by  the 
weighing  of  any  article  at  any  particular  scales,  and  in  the  weighing  an 
error,  not  perceived  at  the  time,  takes  place  from  an  accidental  mis- 
reckoning  of  some  weight,  and  the  thing  is  reported  of  more  weight 
than  it  really  is,  and  the  price  is  paid  thereupon,  would  not  in  that 
case  money  had  and  received  be  sustainable?'^*  But  it  has  been  ar- 
gued, as  if  the  assay-master's  not  having  the  whole  bar  was  imputable 
to  the  laches  of  the  plaintiffs.  But  the  assay-master  might  have  chosen 
his  own  course;  it  was  for  him  to  determine  what  he  wanted.  If 
indeed  he  is  to  be  considered  as  the  agent  only  of  one  party,  I  rather 
think  he  was  the  agent  of  the  defendant;  but  I  take  him  to  have  been 
the  agent  for  both.  Our  decision  will  not  clash  with  the  rule,  caveat 
emptor;  for  here  both  parties  were  under  a  mutual  error,  neither  of 
them  being  [able]  to  exercise  nor  exercising  any  judgment  upon  the 
subject.     I  think  this  is  the  proper  case  for  money  had  and  received. 

Le  Blanc,  J.^®  *  *  *  As  a  general  proposition,  it  may  be  true 
that  when  an  article  is  sold,  which  turns  out  to  be  of  less  value  than 
the  price  given  for  it,  the  extra  price,  if  there  be  no  fraud,  cannot  be 
recovered  back.  But  that  is  a  rule  applicable  only  to  cases  where  the 
thing  is  of  an  arbitrary  value ;  and  the  fallacy  lies  in  applying  the  rule 
of  law  to  this  case  when  the  thing  is  not  of  an  arbitrary  value,  but  de- 
pends upon  the  quantity  of  silver  it  contains.  It  is  just  like  the  case 
of  a  purchase  of  any  commodity  by  weight,  the  price  of  which  is  to 
be  fixed  by  the  weighing;  and  if  the  weight  turns  out  to  be  less  than 
that  paid  for,  can  there  be  a  doubt  that  the  party  selling  is  bound  to 
refund?  So  here  the  price  was  to  be  fixed  by  the  quantity  of  silver 
to  be  ascertained  by  the  assay  of  the  assay-master. 

BaylKy,  J.  I  have  no  doubt  that  this  action  for  money  had  and 
received  will  lie,  and  that  the  defendant  is  liable.  The  assay-master 
was  a  middle-man ;  or,  if  he  was  the  agent  of  either,  he  was  more  so 
of  the  defendant  than  of  the  plaintiff.  The  rule,  caveat  emptor,  does 
not  apply  to  this  case;   for  neither  party  exercised  his  own  judgment. 

78  Compare  Devine  v.  Edwards  (ISSl)  101  111.  138,  page  54,  supra.  See, 
also,  Wheadon  v.  Olds  (1S3S)  20  Wend.  (N.  Y.)  174,  page  73,  supra. 

T9  A  portion  of  the  opiuiou  of  Le  iriauc,  J.,  and  the  concuriiug  opiniou  of 
Dumpier,  J.,  are  omitted. 


168  BENEFITS   CONFERRED   BY   MISTAKE  (Ch.  2 

What  did  the  plaintiffs  bargain  to  buy  and  tlie  defendant  to  sell?  They 
both  understand  that  the  one  agreed  to  buy  and  the  other  to  sell  a  bar 
containing  such  a  quantity  of  silver,  as  should  appear  by  the  assay; 
and  the  quantity  is  fixed  by  the  assay,  and  paid  for;  but  through  some 
mistake  in  the  assay  the  bar  turns  out  not  to  contain  the  quantity  repre- 
sented, but  a  smaller  quantity.  The  plaintiff  therefor  may  rescind 
the  contract,  and  bring  money  had  and  received,  having  offered  to 
return  the  bar  of  silver.  Upon  the  2d  point,  Buller  v.  Harrison, 
Cowper,  566,  is  precisely  in  point.  That  case  decides  that  if  things 
remain  in  the  same  state,  as  they  did  here,  the  action  will  He  against 
the  agent.    Rule  discharged.^" 


GOMPERTZ  V.  BARTLETT. 
(Court  of  King's  Bench,  1S53.    2  El.  &  Bl.  849.) 

Action  for  money  had  and  received.    Plea:    Never  indebted.    Issue 
thereon. 

On  the  trial,  before  Lord  Campbell,  C.  J.,  at  the  sittings  at  Guild- 
hall after  last  Trinity  Term,  it  appeared  that  the  defendant,  in  Lon- 
don, sold  to  the  plaintiff  a  bill  of  exchange  purporting  to  be  drawn  at 
Sierra  Leone  by  Jolly  &  Co.  of  tliat  place  on  Bellot  &  Co.  of  London, 
and  accepted  by  Bellot  &  Co.  payable  to  the  order  of  a  third  person 
in  London.  The  instrument  was  indorsed  in  blank  by  the  payee;  it 
was  unstamped;  but  both  parties  believed  it  to  be  a  foreign  bill  and 
consequently  to  require  no  stamp.  The  defendant  did  not  indorse  the 
bill;  and  it  was  a  sale  without  recourse.  The  plaintiff  paid  £815.  to 
the  defendant,  as  the  price  of  the  bill,  which  was  handed  to  plaintiff : 
and  he,  in  like  manner,  sold  the  bill  to  another  person,  also  without 
recourse.  Before  the  bill  attained  maturity,  all  the  parties  to  the  bill 
became  bankrupt.  On  the  holder  seeking  to  prove  against  the  estate 
of  the  acceptor,  it  was  discovered  that  the  bill,  though  bearing  the 
genuine  signature  of  a  Sierra  Leone  firm,  had,  in  fact,  been  drawn  by 
one  of  the  partners  in  this  kingdom,  and  consequently  was  unavailable 
for  want  of  a  stamp.  The  Commissioners  in  Bankruptcy  refused  to 
allow  the  proof.  The  holder  demanded  back  from  the  plaintiff  the 
price  paid  to  him :  and  the  plaintiff,  under  threat  of  legal  proceed- 
ings, paid  him.  The  plaintiff  now  sought  to  recover  from  the  defend- 
so  But  see  Cleveland-Cliffs  Iron  Co.  v.  East  Itasca  Mining  Co.  (1906)  146 
Fed.  282,  7G  C.  C.  A.  598.  In  this  case  the  parties  contracted  for  a  lease  of 
iron  ore  land  at  a  rate  of  seven  cents  per  gross  ton,  the  amount  of  ore  to  be 
computed  according  to  certain  explorations  based  on  the  customary  assump- 
tion that  a  drill  hole  would  properly  disclose  the  condition  of  the  earth  within 
a  radius  of  100  feet.  This  assumption,  however,  proved  to  be  erroneous,  ow- 
ing to  the  undisclosed  presence  of  taconite  in  large  quantities,  which  rendered 
the  ore  far  less  valuable  than  estimated.  Held,  that  this  mistake  did  not  en- 
title the  lessees  to  sue  for  an  overpayment,  because  the  parties  contracted  in 
view  of  all  the  uncertainties  attendant  upon  the  customary  method  of  estimat- 
ing the  value  of  ore  by  exploration. 


Sec.  2)  SPECIFIC   APPLICATIONS   OF  THE    DOCTRINE  169 

ant  £815.,  the  price  of  the  bill,  as  money  paid  on  a  consideration  which 
had  failed.  It  was  admitted  that  the  defendant,  at  the  time  of  the 
sale,  bona  fide  believed  the  bill  to  have  been  drawn  at  Sierra  Leone; 
and  neither  fraud  nor  negligence  was  imputed  to  him. 

The  Lord  Chief  Justice  directed  a  nonsuit,  with  leave  to  move  to 
enter  a  verdict  for  the  plaintiff.  Petersdorff,  in  this  term,  obtained 
a  rule  nisi  accordingly. 

Lord  Campbell,  C.  J.  At  the  trial,  I  was  impressed  with  the  con- 
sideration that  this  was  a  transaction  of  pure  sale,  and  that  the  vendor 
really  had  title  to  the  bill  which  he  sold,  and  was  perfectly  ignorant  of 
the  latent  defect.  Besides,  the  bill  would  probably  have  in  fact  been 
paid  had  the  parties  to  it  continued  solvent ;  and  on  the  whole  I  was 
then  incHned  to  think  that  the  defect  was  merely  one  in  the  quality, 
which  the  vendor  did  not  warrant.  But,  now,  having  heard  the  argu- 
ment, I  think  that  the  action  is  maintainable,  on  the  ground  that  the 
article  does  not  answer  the  description  of  that  which  was  sold,  viz.,  a 
foreign  bill.  There  was  no  written  statement  or  direct  assertion  that 
this  bill  was  drawn  at  Sierra  Leone ;  but  it  purported  to  be  so  drawn ; 
and  it  must  be  taken  that  it  was  sold  by  the  description  of  a  bill  drawn 
at  Sierra  Leone.  In  fact  it  was  drawn  in  London ;  and,  on  that  ac- 
count, it  could  not  be  enforced.  If  it  really  had  been  a  foreign  bill,  any 
secret  defect  would  have  been  at  the  risk  of  the  purchaser ;  but  this 
is  not  a  case  in  which  an  article  answering  the  description  by  which 
it  is  sold  has  a  secret  defect,  but  one  in  which  the  article  is  not  of  the 
kind  which  was  sold.  I  think,  therefore,  that  the  money  paid  for  it 
may  be  recovered  as  paid  in  mistake  of  facts.  The  law  is,  I  think, 
accurately  laid  down  in  the  passage  cited  from  Addison  on  Contracts. 
If,  being  what  was  sold,  the  bill  was  valueless  because  of  the  insol- 
vency of  the  parties,  the  vendor  would  not  be  answerable ;  but  he  is 
answerable  if  the  bill  be  spurious.  Jones  v.  Ryde  (5  Taunt.  488)  and 
Young  V.  Cole  (3  New  Ca.  724)  are  strongly  in  point.  Young  v.  Cole 
(3  New  Ca.  724)  is  indeed  a  very  strong  case ;  for  the  things  sold  there 
as  Guatemala  bonds  were  in  one  sense  of  the  words  Guatemala  bonds ; 
but  they  were  not  what  was  professed  to  be  sold,  viz.  bonds  binding 
on  the  Guatemala  government.  The  case  is  precisely  as  if  a  bar  was 
sold  as  gold,  but  was  in  fact  brass,  the  vendor  being  innocent.  In  such 
a  case  the  purchaser  may  recover. 

Coleridge,  J,  I  am  of  the  same  opinion.  What  took  place  at  the 
time  of  the  sale  was  merely  that  the  vendor  did  not  indorse  the  bill. 
and  stipulated  in  effect  that  this  should  be  a  sale  without  warranty. 
That  being  so,  the  vendor  was  not  bound  to  see  that  he  sold  a  bill  of 
good  quality,  or  to  answer  for  the  insolvency  of  the  parties ;  but  the 
vendee  is  still  entitled  to  have  an  article  answering  the  description  of 
that  which  he  bought.  Here  he  bought,  as  a  foreign  bill,  what  turns 
out  not  to  be  a  foreign  bill,  and  therefore  valueless.  Common  justice 
requires  that  he  should  have  back  the  price. 

WiGHTMAN,  J.     I  agree  upon  this  ground,  that  what  was  sold  pur- 


170  BENEFITS   CONFERRED   BY    MISTAKE  (Cll.  2 

ported  to  be  a  bill  drawn  at  Sierra  Leone  and  available  against  the 
parties  to  it,  but,  so  far  from  answering  that  description,  was  a  bill 
not  drawn  at  Sierra  Leone,  but  in  England,  and,  being  unstamped, 
was  unavailable.  W^herever  the  article  answers  the  description  by 
which  it  is  sold,  and  it  turns  out  that  there  is  a  latent  defect,  in  the 
absence  of  fraud  and  warranty,  the  vendee  must  take  it  with  all  faults. 
But  this  is  a  case  in  which  it  does  not  answer  the  description.  And 
therefore  on  the  authorities,  more  especially  on  that  of  Jones  v.  Ryde 
(5  Taunt.  488),  the  plaintiff  is  entitled  to  recover. 
Rule  absolute.*^ 


CHAPMAN  V.  COLE. 

(Supreme  Judicial  Court  of  Massachusetts,  1858.     12  Gray,  141,  71  Am. 

Dec.  739.) 

Action  of  tort  for  the  conversion  of  a  gold  coin.  The  parties  sub- 
mitted the  case  to  tlie  decision  of  the  court  upon  the  following  state- 
ment of  facts: 

The  coin,  which  was  a  ten  dollar  gold  piece,  known  as  California 
money  of  "Moffat's  issue,"  and  not  United  States  issue,  was  passed 
by  mistake  for  a  half  dollar  by  one  of  the  plaintiffs  to  S.  A.  Furbush, 
and  by  Furbush,  under  a  like  mistake,  to  the  defendant,  who  received 
it  as  such,  and  took  it  without  any  knowledge  of  any  previous  transac- 

81  In  Jones  v.  Ryde  (1814)  5  Taunton,  488,  the  plaintiffs  discounted  for 
the  defendants  a  navy  bill  in  the  sum  of  £1,88.3.  16s.  3d.  The  amount  of 
the  bill  had  been  fraudulently  raised  by  a  previous  holder  from  £883.  16s, 
3d.  and  on  presentation  to  the  Navy  Pay  Office  plaintiffs  were  able  to 
collect  only  that  amount.  Plaintiffs  then  brought  assumpsit  for  money 
had  and  received  against  defendant  to  recover  the  £1,000.  overpaid  by  them 
in  discounting  tlie  bill.  The  court  upheld  a  verdict  for  plaintiff;  Gibbs,  C.  J., 
in  the  course  of  his  opinion,  saying;  "I*oth  parties  were  mistaken  in  the 
view  they  had  of  this  navy  bill;  the  one  in  representing  it  to  be  a  navy  bill 
of  this  descriiition ;  the  other  in  taking  it  to  be  such.  Upon  its  afterwards 
turning  out  that  this  bill  was  to  a  certain  extent  a  forgery,  we  think  he  who 
took  the  money  ought  to  refund  it  to  the  extent  to  which  the  bill  is  invalid. 
*  *  *  In  the  present  case  the  navy  bill  is  not  such  as  it  purpoited  to  be, 
and  therefore  the  plaintiff  is  entitled  to  recover.  A  case  somewhat  similar 
very  frequently  occurs  in  practice,  on  which  1  should  not  rely  as  governing  the 
law,  but  that  it  is  said,  by  my  Brother  Lens,  to  be  sanctioned  on  the  author- 
ity of  a  case  so  decided  at  nisi  prius,  by  iNIauslield,  C.  J.,  namely,  where  forged 
bank  notes  are  taken.  The  party  negotiating  them,  is  not,  and  does  not  pro- 
fess to  be,  answerable  that  the  Bank  of  England  shall  pay  the  notes;  but  he 
is  answerable  for  the  bills  being  such  as  they  purport  to  be." 

In  IdcClure  v.  Central  Trust  Co.  (1900)  165  N.  Y.  108,  58  N.  E.  777,  53  L. 
R.  A.  153,  the  defendant  advertised  that  it  was  authorized  to  receive  sub- 
scriptions to  stock  of  a  certain  English  company,  such  stock  to  be  issued  full 
paid  and  nonassessable.  Plaintiff'  subscribed  to  some  of  this  stock,  but  the 
defendant  declined  to  deliver  the  same  except  subject  to  an  incumbrance. 
Held,  that  there  was  an  implied  warranty  that  defendant  would  deliver  raai-- 
ketable  stock  i.  e.,  that  which  was  unincumbered ;  thus  plaintiff'  might  rescind 
ui)on  breach  of  this  contract  and  recover  the  money  paid  by  him. 

The  opinion  contains  a  good  discussion  of  the  history  and  rationale  of  the 
doctrine  of  implied  warranty,  page  121  et  seq. 


Sec.  2)  SPECIFIC  APPLICATIONS   OF  THE    DOCTRINB  111 

tion  concerning  it  between  Furbush  and  the  plaintiffs ;  but  during  the 
same  evening  the  defendant  had  reason  to  beheve  that  the  coin  was  a 
CaHfomia  ten  dollar  gold  piece. 

One  of  the  plaintiffs  afterwards  demanded  the  coin  of  the  defend- 
ant, claiming  it  as  their  property,  and  tendered  half  a  dollar  therefor, 
and  the  defendant  refused  to  deliver  it,  admitting  at  the  same  time 
that  it  was  in  his  possession.  Similar  pieces,  called  "Moffat's  issue," 
pass  as  currency  in  California,  and  are  worth  ten  dollars. 

If  this  action  can  be  maintained,  the  plaintiffs  are  to  have  judgment 
for  the  sum  of  ten  dollars  as  damages;  otherwise,  judgment  is  to  be 
entered  for  the  defendant. 

Mr.TCALF,  J.  The  property  in  the  gold  piece  never  passed  from 
plaintiffs  to  Furbush ;  the  possession  thereof  having  passed  from  them 
to  him  by  mistake.  The  plaintiffs  intended  to  pay  to  him  fifty  cents 
in  money,  and  he  intended  to  receive  from  them  that  sum  in  money; 
and  botli  parties  supposed  that  what  they  intended  to  do  had  been  done. 
By  a  mistake  of  both  parties,  a  chattel  worth  ten  dollars,  but  sup- 
posed to  be  half  a  dollar  in  money,  was  delivered  by  the  plaintiffs,  and 
received  by  Furbush,  as  half  a  dollar,  in  payment  of  that  sum.  There 
was  a  mistake  as  to  the  identity  of  the  subject  of  the  agreement;  and 
in  such  case  there  is  no  assent  of  the  parties,  and  no  binding  transac- 
tion. 

As  Furbush  acquired  no  property  in  the  gold  piece,  he  could  convey 
none  to  the  defendant.  The  plaintiffs  may  therefore  well  maintain 
an  action,  in  this  form,  against  the  defendant.  The  defendant,  by 
receiving  the  plaintiff's  gold  piece  of  Furbush,  and  claiming  it  as  his 
own,  was  guilty  of'a  conversion  of  it,  and  the  present  action  might  have 
been  maintained  without  a  previous  demand  on -him  for  it.  Stanley 
V.  Gaylord,  1  Cush.  536,  48  Am.  Dec.  643.  And  if  this  were  not  so, 
yet  as  a  demand  was  made  on  him  for  it,  and  he  refused  to  deliver  it, 
when  it  was  in  his  power  forthwith  to  do  so,  there  is  sufficient  evidence 
of  conversion,  in  the  absence  of  any  fact  tending  to  rebut  or  control 
that  evidence. 

If  the  gold  piece  had  been  an  eagle  of  American  money,  passed  by 
mistake  for  a  half  dollar  piece  to  Furbush,  and  by  him  to  the  defend- 
ant, we  do  not  suppose  that  this  action  could  have  been  maintained. 
The  plaintiffs'  remedy  would  have  been  against  Furbush,  in  an  action 
of  contract  for  $9.50  money  had  and  received.  See  Bretton  v.  Barnet, 
Owen,  86.  "It  would  be  mischievous,"  says  Chief  Justice  Parker,  "to 
require  of  persons,  who  receive  money  in  the  way  of  business,  or  in 
payment  of  debts,  to  look  into  the  authority  of  him  from  whom  they 
receive  it."  Mason  v.  Waite,  17  Mass.  563.  Even  when  money  is 
stolen,  and  is  passed  by  the  thief,  it  becomes  the  property  of  him  to 
whom  it  is  passed  for  a  valuable  consideration,  and  without  knowl- 
edge that  it  was  stolen.  Miller  v.  Race,  1  Bur.  452.  It  is  otherwise 
when  stolen  chattels  are  sold  to  an  honest  buyer.  He  acquires  no 
title  to  them,  and  is  liable  to  the  owner  in  an  action  of  tort.     Dame 


172  BENEFITS   CONFERRED   BY   MISTAKE  (Ch.  2 

V.  Baldwin,  8  Mass.  518;  2  Bl.  Com.  449.  As  this  gold  piece  was  not 
money,  the  rules  of  law  which  apply  to  other  cliattels  must  be  applied 
to  it. 

Judgment  for  the  plaintiffs. 


WOOD  V.  BOYNTON. 

(Supreme  Court  of  Wisconsin,  1885.    64  Wis.  2G5,  25  N.  W.  42,  54  Am. 

Rep.  610.) 

Appeal  from  circuit  court  for  Milwaukee  county. 

Taylor,  J.  This  action  was  brought  in  the  circuit  court  for  Mil- 
waukee county  to  recover  the  possession  of  an  uncut  diamond  of  the 
alleged  value  of  $1,000.  The  case  was  tried  in  the  circuit  court,  and 
after  hearing  all  the  evidence  in  the  case,  the  learned  circuit  judge 
directed  the  jury  to  find  a  verdict  for  the  defendants.  The  plaintiff 
excepted  to  such  instruction,  and,  after  a  verdict  was  rendered  for  the 
defendants,  moved  for  a  new  trial  upon  the  minutes  of  the  judge. 
The  motion  was  denied,  and  the  plaintiff  duly  excepted,  and  after 
judgment  was  entered  in  favor  of  the  defendants,  appealed  to  this 
court.  The  defendants  are  partners  in  the  jewelry  business.  On  the 
trial  it  appeared  that  on  and -before  the  twenty-eighth  of  December, 
1883,  the  plaintiff  was  the  owner  of  and  in  the  possession  of  a  small 
stone  of  the  nature  and  value  of  which  she  was  ignorant;  that  on  that 
day  she  sold  it  to  one  of  the  defendants  for  the  sum  of  one  dollar. 
Afterwards  it  was  ascertained  that  the  stone  was  a  rough  diamond, 
and  of  the  value  of  about  $700.  After  hearing  this  fact  the  plaintiff 
tendered  the  defendants  the  one  dollar,  and  ten  cents  as  interest,  and 
demanded  a  return  of  the  stone  to  her.  The  defendants  refused  to 
deliver  it,  and  therefore  she  commenced  this  action. 

The  plaintiff  testified  to  the  circumstances  attending  the  sale  of  the 
stone  to  Mr.  Samuel  B.  Boynton,  as  follows :  "The  first  time  Boynton 
saw  that  stone  he  was  talking  about  buying  the  topaz,  or  whatever  it 
is,  in  September  or  October.  I  went  into  the  store  to  get  a  little  pin 
mended,  and  I  had  it  in  a  small  box, — the  pin, — a  small  ear-ring; 
*  *  *  this  stone,  and  a  broken  sleeve-button  were  in  the  box.  Mr. 
Boynton  turned  to  give  me  a  check  for  my  pin.  I  thought  I  would  ask 
him  what  the  stone  was,  and  I  took  it  out  of  the  box  and  asked  him 
to  please  tell  me  what  that  was.  He  took  it  in  his  hand  and  seemed 
some  time  looking  at  it.  I  told  him  I  had  been  told  it  was  a  topaz,  and 
he  said  it  might  be.  He  says,  T  would  buy  this;  would  you  sell  it?' 
I  told  him  I  did  not  know  but  what  I  would.  What  would  it  be  worth? 
And  he  said  he  did  not  know ;  he  would  give  me  a  dollar  and  keep 
it  as  a  specimen,  and  I  told  him  I  would  not  sell  it;  and  it  was  cer- 
tainly pretty  to  look  at.  He  asked  me  where  I  found  it,  and  I  told  him 
in  Eagle.  He  asked  about  how  far  out,  and  I  said  right  in  the  village 
and  I  went  out.    Afterwards,  and  ;:bout  the  twenty-eighth  of  Decem- 


Sec.  2)  SPECIFIC   APPLICATIONS   OF  THE    DOCTRINE  173 

ber,  I  needed  money  pretty  badly,  and  thought  every  dollar  would 
help,  and  I  took  it  back  to  Mr.  Boynton  and  told  him  I  had  brought 
back  the  topaz,  and  he  says,  'Well,  yes;  what  did  I  offer  you  for  it?' 
and  I  says,  'One  dollar;'  and  he  stepped  to  the  change  drawer  and 
gave  me  the  dollar,  and  I  went  out."  In  another  part  of  her  testimony 
she  says :  "Before  I  sold  the  stone  I  had  no  knowledge  whatever  that 
it  was  a  diamond,  I  told  him  that  I  had  been  advised  that  it  was  proba- 
bly a  topaz,  and  he  said  probably  it  was.  The  stone  was  about  the 
size  of  a  canary  bird's  egg,  nearly  the  shape  of  an  egg, — worn  pointed 
at  one  end ;  it  was  nearly  straw  color, — a  little  darker."  She  also 
testified  that  before  this  action  was  commenced  she  tendered  the  de- 
fendants $1.10,  and  demanded  the  return  of  the  stone,  which  they  re- 
fused. This  is  substantially  all  the  evidence  of  what  took  place  at  and 
before  the  sale  to  the  defendants,  as  testified  to  by  the  plaintiff  herself. 
She  produced  no  other  witness  on  that  point. 

The  evidence  on  the  part  of  the  defendant  is  not  very  different  from 
the  version  given  by  the  plaintiff,  and  certainly  is  not  more  favorable 
to  the  plaintiff.  Mr.  Samuel  B.  Boynton,  the  defendant  to  whom  the 
stone  was  sold,  testified  that  at  the  time  he  bought  this  stone,  he  had 
never  seen  an  uncut  diamond;  had  seen  cut  diamonds,  but  they  are 
quite  different  from  the  uncut  ones ;  "he  had  no  idea  this  was  a  dia- 
mond, and  it  never  entered  his  brain  at  the  time."  Considerable  evi- 
dence was  given  as  to  what  took  place  after  the  sale  and  purchase, 
but  that  evidence  has  very  little  if  any  bearing,  upon  the  main  point 
in  the  case. 

This  evidence  clearly  shows  that  the  plaintiff  sold  the  stone  in  ques- 
tion to  the  defendants,  and  delivered  it  to  them  in  December,  1883,  for 
a  consideration  of  one  dollar.  The  title  to  the  stone  passed  by  the 
sale  and  delivery  to  the  defendants.  How  has  that  title  been  divested 
and  again  vested  in  the  plaintiff?  The  contention  of  the  learned  coun- 
sel for  the  appellant  is  that  the  title  became  vested  in  the  plaintiff  by 
the  tender  to  the  Boyntons  of  the  purchase  money  with  interest,  and 
a  demand  of  a  return  of  the  stone  to  her.  Unless  such  tender  and 
demand  revested  the  title  in  the  appellant,  she  cannot  maintain  her  ac- 
tion. The  only  question  in  the  case  is  whether  there  was  anything  in 
the  sale  which  entitled  the  vendor  (the  appellant)  to  rescind  the  sale 
and  so  revest  the  title  in  her.  The  only  reasons  we  know  of  for  re- 
scinding a  sale  and  revesting  the  title  in  the  vendor  so  that  he  may 
maintain  an  action  at  law  for  the  recovery  of  the  possession  against 
his  vendee  are  (1)  that  the  vendee  was  guilty  of  some  fraud  in  pro- 
curing a  sale  to  be  made  to  him ;  (2)  that  there  was  a  mistake  made 
by  the  vendor  in  delivering  an  article  which  was  not  the  article  sold, 
- — a  mistake  in  fact  as  to  the  identity  of  the  thing  sold  with  the  thing 
delivered  upon  the  sale.  This  last  is  not  in  reality  a  rescission  of  the 
sale  made,  as  the  thing  delivered  was  not  the  thing  sold,  and  no  title 
ever  passed  to  the  vendee  by  such  delivery. 

In  this  case,  upon  the  plaintiff's  own  evidence,  there  can  be  no  just 


174  BENEFITS   CONFERKED   BY   MISTAKE  (Cll.  2 

ground  for  alleging  that  she  was  induced  to  make  the  sale  she  did  by 
any  fraud  or  unfair  dealings  on  the  part  of  Mr.  Boynton.  Both  were 
entirely  ignorant  at  the  time  of  the  character  of  the  stone  and  of  its 
intrinsic  value.  Mr.  Boynton  was  not  an  expert  in  uncut  diamonds, 
and  had  made  no  examination  of  the  stone,  except  to  take  it  in  his 
hand  and  look  at  it  before  he  made  the  offer  of  one  dollar,  which  was 
refused  at  the  time,  and  afterwards  accepted  without  any  comment 
or  further  examination  made  by  Mr.  Boynton.  The  appellant  had  the 
stone  in  her  possession  for  a  long  time,  and  it  appears  from  her  own 
statement  that  she  had  made  some  inquiry  as  to  its  nature  and  qual- 
ities. If  she  chose  to  sell  it  without  further  investigation  as  to  its  in- 
trinsic value  to  a  person  who  was  guilty  of  no  fraud  or  unfairness 
which  induced  her  to  sell  it  for  a  small  sum,  she  cannot  repudiate  the 
sale  because  it  is  afterwards  ascertained  that  she  made  a  bad  bargain. 
Kennedy  v.  Panama,  etc..  Mail  Co.,  L.  R.  2  Q.  B.  580. 

There  is  no  pretense  of  any  mistake  as  to  the  identity  of  the  thing 
sold.  It  was  produced  by  the  plaintiff  and  exhibited  to  the  vendee 
before  the  sale  was  made,  and  the  thing  sold  was  delivered  to  the 
vendee  when  the  purchase  price  was  paid.  Kennedy  v.  Panama,  etc.. 
Mail  Co.,  supra.,  587;  Street  v.  Blay,  2  Barn.  &  Adol.  456;  Gompertz 
v.  Bartlett,  2  El.  &  Bl.  849 ;  Gurney  v.  Womersley,  4  El.  &  Bl.  133 ; 
Ship's  Case,  2  De  G.  J.  &  S.  544.  Suppose  the  appellant  had  produced 
the  stone,  and  said  she  had  been  told  it  was  a  diamond,  and  she  be- 
lieved it  was,  but  had  no  knowledge  herself  as  to  its  character  or  value, 
and  Mr.  Boynton  had  given  her  $500  for  it,  could  he  have  rescinded 
the  sale  if  it  had  turned  out  to  be  a  topaz  or  any  other  stone  of  very 
small  value?  Could  Mr.  Boynton  have  rescinded  the  sale  on  the 
ground  of  mistake?  Clearly  not,  nor  could  he  rescind  it  on  the  ground 
that  there  had  been  a  breach  of  warranty,  because  there  was  no  war- 
ranty, nor  could  he  rescind  it  on  the  ground  of  fraud,  unless  he  could 
show  that  she  falsely  declared  that  she  had  been  told  it  was  a  diamond, 
or,  if  she  had  been  so  told,  still  she  knew  it  was  not  a  diamond.  See 
Street  v.  Blay,  supra. 

It  is  urged,  with  a  good  deal  of  earnestness,  on  the  part  of  the  coun- 
sel for  the  appellant  that,  because  it  has  turned  out  that  the  stone  was 
immensely  more  valuable  than  the  parties  at  the  time  of  the  sale  sup- 
posed it  was,  such  fact  alone  is  a  ground  for  the  rescission  of  the  sale, 
and  that  fact  was  evidence  of  fraud  on  the  part  of  the  vendee.  Wheth- 
er inadequacy  of  price  is  to  be  received  as  evidence  of  fraud,  even  in  a 
suit  in  equity  to  avoid  a  sale,  depends  upon  the  facts  known  to  the 
parties  at  the  time  the  sale  is  made. 

When  this  sale  was  made  the  value  of  the  tiling  sold  was  open  to 
the  investigation  of  both  parties,  neither  knowing  its  intrinsic  value, 
and,  so  far  as  the  evidence  in  this  case  shows,  both  supposed  that  the 
price  paid  was  adequate.  How  can  fraud  be  predicated  upon  such  a 
sale,  even  though  after-investigation  showed  that  the  intrinsic  value 
of  the  thing  sold  was  hundreds  of  times  greater  than  the  price  paid? 


Sec.  2)  SPECIFIC  APPLICATIONS   OF  THE    DOCTRINE  175 

It  certainly  shows  no  such  fraud  as  would  authorize  the  vendor  to 
rescind  the  contract  and  bring  an  action  at  law  to  recover  the  posses- 
sion of  the  thing  sold.  Whether  that  fact  would  have  any  influence  in 
an  action  in  equity  to  avoid  the  sale  we  need  not  consider.  See  Stet- 
theimer  v.  Killip,  75  N.  Y.  287;  Etting  v.  Bank  of  U.  S.,  11  Wheat. 
59,  6  L.  Ed.  419. 

We  can  find  nothing  in  the  evidence  from  which  it  could  be  justly 
inferred  that  Mr.  Boynton,  at  the  time  he  offered  the  plaintiff  one 
dollar  for  the  stone,  had  any  knowledge  of  the  real  value  of  the  stone, 
or  that  he  entertained  even  a  belief  that  the  stone  was  a  diamond.  It 
cannot,  therefore,  be  said  that  there  was  a  suppression  of  knowledge 
on  the  part  of  the  defendant  as  to  the  value  of  the  stone  which  a  court 
of  equity  might  seize  upon  to  avoid  the  sale.  The  following  cases  show 
that,  in  the  absence  of  fraud  or  warranty,  the  value  of  the  property 
sold,  as  compared  with  the  price  paid,  is  no  ground  for  a  rescission  of 
a  sale.  Wheat  v.  Cross,  31  Md.  99,  1  Am.  Rep.  28;  Lambert  v.  Heath, 
15  Mees.  &  W.  487;  Bryant  v.  Pember,  45  Vt.  487;  Kuelkamp  v. 
Hidding,  31  Wis.  503-511.  However  unfortunate  the  plaintiff  may 
have  been  in  selling  this  valuable  stone  for  a  mere  nominal  sum,  she 
has  failed  entirely  to  make  out  a  case  either  of  fraud  or  mistake  in 
the  sale  such  as  will  entitle  her  to  a  rescission  of  such  sale  so  as  to 
recover  the  property  sold  in  an  action  at  law. 

The  judgment  of  the  circuit  court  is  affirmed.®^ 

82  In  Sherwood  v.  Walker  (1SS7)  G6  Mich.  5G8,  33  N.  TV.  919,  11  Am.  St.  Rep. 
531,  the  defendant  sold  to  the  plaintifl"  a  blooded  cow  at  a  ceitaiii  price  per 
pound,  which  amounted  to  $80.  The  parties  at  the  time  of  sale  believed 
that  the  cow  was  barren.  It  later  turned  out  that  the  cow  was  with 
calf,  which  would  make  her  value  between  .^i^TSO  and  $1,000.  and  the  defend- 
ant refused  to  deliver,  claiming  that  he  was  entitled  to  rescind  the  contract 
for  mistake.  The  plaintiff  then  l)rou'j;ht  an  action  of  replevin.  The  court  held 
for  defendant,  JMorse,  J.,  in  the  majority  opinion,  saying:  "It  seems  to  me, 
however,  in  the  case  made  by  this  record,  that  the  mistake  or  misapprehen- 
sion of  the  parties  went  to  the  whole  substance  of  the  agreement.  If  the  cow 
was  a  breeder,  she  was  worth  at  least  $750;  if  barren,  she  was  worth  not 
over  $80.  The  parties  would  not  have  made  the  contract  of  sale  except  upon 
the  understanding  and  belief  that  she  was  incapable  of  breeding,  and  of  no 
use  as  a  cow.  It  is  true  she  is  now  the  identical  animal  that  they  thought 
her  to  be  when  the  contract  was  made :  there  is  no  mistake  as  to  the  identity 
of  the  creature.  Yet  the  mistake  was  not  of  the  mere  quality  of  the  animal, 
but  went  to  the  very  nature  of  the  thing.  A  barren  cow  is  substantially  a  dif- 
ferent creature  than  a  breeding  one.  There  is  as  much  difference  between 
them  for  all  purposes  of  use  as  there  is  between  an  ox  and  a  cow  that  is  capa- 
ble of  breeding  and  giving  milk.  If  the  mutual  mistake  had  simply  related 
to  the  fact  whether  she  was  with  calf  or  not  for  one  season,  then  it  might 
have  been  a  good  sale,  but  the  mistake  affected  the  character  of  the  animal 
for  all  time,  and  for  its  present  and  ultimate  use.  She  was  not  in  fact  the 
animal,  or  the  kind  of  animal,  the  defendants  intended  to  sell  or  the  plaintilT 
to  buy.  She  was  not  a  barren  cow,  and,  if  this  fact  had  been  known,  there 
would  have  been  no  contract.  The  mistake  affected  the  substance  of  the 
whole  consideration,  and  it  must  be  considered  that  there  was  no  contract  to 
sell  or  sale  of  the  cow  as  she  actually  was.  The  thing  sold  and  bought  had 
in  fact  no  existence.  She  was  sold  as  a  beef  creature  would  be  sold ;  she  is 
in  fact  a  breeding  cow,  and  a  valuable  one.  The  court  should  have  instructed 
the  jury  that  if  they  found  that  the  cow  was  sold,  or  contracted  to  be  sold, 
upon  the  understanding  of  both  parties  that  she  was  barren,  and  useless  for 


176  BENEFITS  CONFERRED  BY  MISTAKE  (Ch.  2 


HECHT  V.  BATCHELLER. 

(Supreme  Judicial  Court  of  Massachusetts,  1SS8.     147  Mass.  335,  17  N.  E.  651, 

9  Am.  St.  Rep.  70S.) 

Contract  for  money  had  and  received.  The  case  was  tried  in  the 
Superior  Court,  without  a  jury,  before  Mason,  J.,  upon  an  agreed 
statement  of  facts.  The  judge  found  for  the  plaintiffs,  and  the  de- 
fendants alleged  exceptions. 

Morton,  C,  J.*^  The  defendants,  being  the  owners  of  a  promis- 
sory note  which  they  had  taken  in  the  ordinary  course  of  business, 
sold  it  through  a  broker  to  the  plaintiffs.  It  was  afterwards  ascer- 
tained that,  two  hours  before  this  sale,  the  makers  of  the  note  had 
made  "a  voluntary  assignment  of  all  their  assets  for  the  benefit  of  their 
creditors,  to  be  administered  under  the  insolvent  laws  of  Ohio,"  of 
which  state  they  were  residents.  Neither  of  the  parties  to  this  suit, 
nor  the  broker  employed  by  the  defendants,  knew  of  the  assignment 
at  the  time  of  the  sale,  but  they  all  supposed  that  the  makers  were 
doing  business  as  theretofore.  The  plaintiff's  contend  that  they  are 
entitled  to  recover  upon  either  of  two  grounds :  First,  that  there  was 
a  mutual  mistake  of  the  parties  as  to  the  thing  sold,  and  therefore 
no  contract  was  completed  between  them ;  and,  second,  that  there  was 
a  warranty,  express  or  implied,  by  the  defendants,  that  the  makers  of 
the  note  were  then  carrying  on  business,  and  had  not  failed  or  made 
an  assignment. 

1.  It  is  a  general  rule  that  where  parties  assume  to  contract,  and 
there  is  a  mistake  as  to  the  existence  or  identity  of  the  subject-matter, 

the  purpose  of  breeding,  and  that  in  fact  she  was  not  barren,  but  capable  of 
breeding,  then  the  defendants  had  a  right  to  rescind,  and  to  refuse  to  deliver, 
and  the  verdict  should  be  in  their  favor." 

Slierwood,  J.,  in  a  dissenting  opinion  took  a  different  view  of  the  case,  as 
follows :  "The  defendants  sold  the  cow  for  what  they  believed  her  to  be,  and 
the  plaintiff  bought  her  as  he  believed  she  was,  after  the  statements  made  by 
the  defendants.  No  conditions  wliatever  were  attached  to  the  terms  of  sale 
by  either  party.  It  was  in  fact  as  absolute  as  it  could  well  be  made,  and  1 
know  of  no  precedent  as  authority  by  which  this  court  can  alter  the  contract 
thus  made  by  these  parties  in  writing, — interpolate  in  it  a  condition  by  which, 
if  the  defendants  should  be  mistaken  in  their  belief  that  the  cow  was  barren, 
she  could  be  returned  to  them  and  their  contract  should  be  annulled.  *  *  * 
There  was  no  difference  between  the  parties,  nor  misapprehension,  as  to  the 
substance  of  the  thing  bargained  for,  which  was  a  cow  supposed  to  be  barren 
by  one  party,  and  believed  not  to  be  by  the  other.  As  to  the  quality  of  the 
animal,  subsequently  developed,  both  parties  were  equally  ignorant,  and  as 
to  this  each  party  took  his  chances.  If  this  were  not  the  law,  there  would 
be  no  safety  in  purchasing  this  kind  of  stock.  I  entirely  agree  with  my  Breth- 
ren that  the  right  to  rescind  occurs  whenever  'the.  thing  actually  delivered 
or  received  is  different  in  substance  from  the  thing  bargained  for,  and  intended 
to  be  sold' ;  but  if  it  be  only  a  difference  in  some  quality  or  accident,  even 
though  the  mtsapprehension  may  have  been  the  'actuating  motive'  of  the  par- 
ties in  making  the  contract,  yet  it  will  remain  binding.  In  this  case  the  cow 
eold  was  the  one  delivered.  What  might  or  might  not  happen  to  her  after 
the  sale  formed  no  element  in  the  contract." 

S3  The  statement  of  facts  and  a  portion  of  the  opinion  are  omitted. 


Sec.  2)  SPECIFIC  APPLICATIONS   OF  THE    DOCTRINE  177 

there  is  no  contract,  because  of  the  want  of  the  mutual  assent  neces- 
sary to  create  one;  so  that,  in  the  case  of  a  contract  for  the  sale  of 
personal  property,  if  there  is  such  mistake,  and  the  thing  delivered 
is  not  the  thing  sold,  the  purchaser  may  refuse  to  receive  it,  or,  if  he 
receives  it,  may,  upon  discovery  of  the  mistake,  return  it,  and  recover 
back  the  price  he  has  paid.  But  to  produce  this  result  the  mistake  must 
be  one  which  affects  the  existence  or  identity  of  the  thing  sold.  Any 
mistake  as  to  its  value  or  quality,  or  other  collateral  attributes,  is  not 
sufficient  if  the  thing  delivered  is  existent,  and  is  the  identical  thing 
in  kind  which  was  sold.  Gardner  v.  Lane,  9  Allen,  492,  85  Am.  Dec. 
779;  Id.,  12  Allen,  39;  Spurr  v.  Benedict,  99  Mass.  463;  Iron  Co. 
V.  Insurance  Co.,  134  Mass.  433;   1  Benj.  Sales,  §  54. 

In  the  case  at  bar,  the  subject-matter  of  the  contract  was  the  note  of 
J.  &  S.  B.  Sachs.  The  note  delivered  was  the  same  note  which  the 
parties  bought  and  sold.  They  may  both  have  understood  that  the 
makers  were  solvent,  whereas  they  were  insolvent ;  but  such  a  mistake 
or  misapprehension  affects  the  value  of  the  note,  and  not  its  identity. 
Day  V.  Kinney,  131  Mass.  37.  In  the  case  of  Day  v.  Kinney,  ubi  su- 
pra, the  makers  of  the  note  sold  were  in  fact  insolvent,  but  they  had  not 
stopped  payment,  or  been  adjudged  insolvent,  and  the  decision  is 
confined  to  the  facts  of  the  case.  But  we  think  the  same  principles 
apply  in  this  case.  The  makers  of  the  note  had  made  an  assign- 
ment for  the  benefit  of  their  creditors ;  but  this  did  not  extinguish 
the  note,  or  destroy  its  identity.  It  remained  an  existing  note,  capable 
of  being  enforced,  with  every  essential  attribute  going  to  its  nature 
as  a  note  which  it  had  before.  Its  quality  and  value  were  impaired, 
but  not  its  identity.  The  parties  bought  and  sold  what  they  intended, 
and  their  mistake  was  not  as  to  the  subject-matter  of  the  sale,  but  as 
to  its  quality.  We  are  therefore  of  opinion  that  the  sale  was  valid, 
and  that  the  plaintiffs  cannot  recover  the  amount  they  paid  as  upon  a 
failure  of  consideration.     *     *     * 

We  think  the  principles  we  have  stated  are  decisive  of  the  case  before 
us.  The  defendants  sold  the  note  in  good  faith.  So  far  as  the  evidence 
shows,  neither  party,  at  the  time  of  the  sale,  spoke  of  or  inquired  about 
or  knew  anything  about  the  failure  of  the  makers.  They  stood  upon 
an  equal  footing,  and  they  had  equal  means  of  knowing  the  standing 
of  the  maker.  It  was  understood  that  the  defendants  were  selling  the 
note  without  recourse  to  them.  They  did  not  expressly  warrant  the 
value  of  the  note,  and  we  are  of  opinion  that  no  warranty  could  fairly 
be  inferred  from  the  circumstances  of  the  solvency  of  the  makers,  or 
that  they  continued  in  business. 

We  are  therefore  of  opinion  that  the  first  three  instructions  requested 
by  the  defendants  should  have  been  given,  and  that,  upon  the  facts  of 
the  case,  the  court  was  not  justified  in  finding  for  the  plaintiffs.  Ex- 
ceptions  sustained. 

TlIUBS.QUASI  CONT. — 12 


178  BENEFITS  CONFERRED  BY   MISTAKE  (Ch.  2 


CONNER  V.  HENDERSON. 

(Supreme  Judicial  Court  of  Massachusetts,  1818.    15  Mass.  319,  8  Am. 

Dec.  103.) 

This  was  an  action  of  the  case  in  assumpsit,  alleging  that  the 
defendant  undertook  to  sell  and  deliver  to  the  plaintiff  eighty-nine 
casks  of  lime  of  good  quality,  but  in  fact  delivered  to  him  eighty-nine 
casks  of  lime  of  little  value,  not  merchantable.  There  was  a  second 
count  much  like  the  first;  and  a  third  count  for  money  had  and  re- 
ceived. 

Trial  on  the  general  issue,  before  Putnam,  J.,  at  the  sittings  here 
after  the  last  November  term.  The  plaintiff  produced  the  defendant's 
bill  of  parcels  of  89  casks  of  lime  to  the  plaintiff  at  10s.,  amounting  to 
148  dollars  33  cents.  It  was  proved  that  the  casks  were  branded  by 
one  D.  Jenks,  Jun.,  an  inspector  of  lime;  and  there  was  satisfactory 
evidence  that  the  contents  of  the  casks  were  of  no  value,  being  a  mix- 
ture of  sand  and  stones,  and  wholly  unfit  for  use  as  lime. 

It  was  admitted  by  the  plaintiff  that  he  had  sold,  and  charged  to  his 
customers,  about  thirty  casks,  which  had  not  been  paid  for,  except  two 
which  were  sold  and  paid  for  at  two  dollars  per  cask,  the  plaintiff  and 
his  customers  then  supposing  the  casks  to  contain  good  lime. 

There  was  no  evidence  of  a  special  warranty  of  the  defendant  that 
the  lime  was  good ;  nor  any  evidence  that  he  knew  it  was  bad.  The 
defendant  was  master  of  a  coasting  vessel,  and  had  received  the  casks 
of  one  G.  Sevey  at  Thomastown,  to  carry  on  freight  to  Boston,  and 
to  sell  on  Sevey's  account.  It  did  not  appear,  however,  that  the 
defendant  disclosed  his  principal  to  the  plaintiff;  nor  had  this  lat- 
ter returned  the  casks,  which  he  had  not  sold  as  aforesaid. 

The  judge  instructed  the  jury  that  if,  from  the  evidence,  they  be- 
lieved the  defendant  had  not  practised  any  fraud,  they  must  find  a 
verdict  for  him  upon  the  two  first  counts ;  because  the  delivery  of  the 
casks  with  the  inspector's  brand,  together  with  a  bill  of  the  same,  did 
not  amount  to  a  warranty  of  the  contents,  of  which  the  defendant 
might  be  ignorant;  that,  to  charge  him  upon  those  counts,  they  must 
find  fraud  or  warranty  on  his  part;  but  that,  in  respect  to  the  count 
for  money  had  and  received,  it  was  recoverable  where  the  money  had 
been  received  by  the  defendant  by  mistake,  or  where  the  considera- 
tion had  failed,  although  no  fraud  had  been  practised  by  him ;  and  if 
they  should  believe,  from  the  evidence,  that  the  plaintiff  intended  to 
buy,  and  the  defendant  to  sell,  89  casks  of  lime,  and  not  89  casks  with- 
out lime ;  and  that  the  casks  which  he  delivered  did  not  contain  lime,  but 
stones  and  stuff  of  no  value,  that  the  consideration  of  the  contract  had 
failed,  although  the  defendant  had  no  bad  intentions ;  and  the  plain- 
tiff might  recover  the  money  he  had  paid  upon  the  contract,  and  con- 
sider it  as  rescinded,  notwithstanding  he  had  not  redelivered  the  casks 


Sec.  2)  SPECIFIC  APPLICATIONS   OF  THE    DOCTRINE  179 

before  he  brought  his  action,  he  being  accountable  to  the  defendant 
for  the  same. 

The  jury  found  a  verdict  for  the  defendant  upon  the  two  first 
counts,  and  for  the  plaintiff  upon  the  money  count,  on  the  ground 
above  stated  by  the  judge.  And  if,  upon  the  facts,  the  plaintiff  was 
entitled,  in  the  opinion  of  the  Court,  to  recover  upon  either  of  the 
counts,  judgment  was  to  be  entered  upon  the  verdict;  otherwise,  it  was 
to  be  set  aside,  and  the  plaintiff"  to  become  nonsuit. 

Per  Curiam.  The  evidence  reported  will  not  maintain  the  action 
on  either  of  the  first  two  counts.  There  was  no  express  warranty  re- 
specting the  quality  of  the  article.  Neither  can  the  plaintiff  recover  on 
his  count  for  money  had  and  received.  If  he  would  have  rescinded 
the  contract,  and  so  have  entitled  himself  to  a  return  of  the  money 
paid,  it  was  necessary  that  he  put  the  defendant  in  the  same  situation 
he  was  in  before  the  delivery  of  the  article.  This  was  settled  in  the 
case  of  Kimball  v.  Cunningham;  and  although  the  principal  subject 
of  the  contract,  in  the  present  case,  may  be  presumed,  from  the  evi- 
dence reported,  to  have  been  absolutely  of  no  value,  and  so  the  return- 
ing of  it  would  have  been  but  an  idle  act,  yet  the  casks  were  of  some 
value,  and  should  have  been  restored,  if  tlie  plaintiff  would  treat  the 
sale  as  a  nullity,  and  demand  his  mOney  as  paid  without  consideration. 

We  think,  however,  tliat  an  action  may  be  framed,  in  which  the 
plaintiff  may  recover,  on  the  evidence  reported.  He  may  therefore 
file  a  new  declaration,  on  which  a  trial  may  be  had ;  but  he  cannot  have 
his  costs  arising  prior  to  the  present  time. 


V.  Special  Rules  as  to  Negotiable  Paper 
PRICE  V.  NEAL. 

(Court  of  King's  Bench,  1762.    3  Burr.  1354.) 

This  was  a  special  case  reserved  at  the  sittings  at  Guildhall  after 
Trinity  term,  1762,  before  Lord  Mansfield. 

It  was  an  action  upon  the  case  brought  by  Price  against  Neal ;  where- 
in Price  declares  that  the  defendant  Edward  Neal  was  indebted  to  him 
in  £80,  for  money  had  and  received  to  his  the  plaintiff's  use;  and  dam- 
ages were  laid  to  £100.  The  general  issue  was  pleaded;  and  issue  join- 
ed thereon. 

It  was  proved  at  the  trial,  that  a  bill  was  drawn  as  follows — 
"Leicester,  22d  November,  1760.  Sir,  six  weeks  after  date  pay  Mr. 
Rogers  Ruding  or  order  forty  pounds,  value  received  for  Mr.  Thomas 
Ploughfor;  as  advised  by,  sir,  your  humble  servant  Benjamin  Sut- 
ton. To  Mr.  John  Price  in  Bush-Lane  Cannon-Street,  London;"  in- 
dorsed "R.  Ruding,  Antony  Topham,  Hammond  and  Laroche.  Re- 
ceived the  contents,  James  Watson  and  Son :   witness  Edward  Neal." 


180  BENEFITS   CONFERRED   BY   MISTAKE  (Cll.  2 

That  this  bill  was  indorsed  to  the  defendant  for  a  valuable  consid- 
eration ;   and  notice  of  the  bill  left  at  the  plaintiff's  house,  on  the  day- 
it  became  due.    Whereupon  the  plaintiff  sent  his  servant  to  call  on-  the 
defendant,  to  pay  him  the  said  sum  of  i40.  and  take  up  the  said  bill ; 
which  was  done  accordingly. 

That  another  bill  was  drawn  as  follows — "Leicester,  1st  February, 
1761.  Sir,  six  weeks  after  date  pay  Mr.  Rogers  Ruding  or  order 
forty  pounds,  value  received  for  Mr.  Thomas  Ploughfor;  as  advised 
by,  sir,  your  humble  servant  Benjamin  Sutton.  To  Mr.  John  Price 
in  Bush-Lane,  Cannon-Street,  London."  That  this  bill  was  indorsed, 
"R.  Ruding,  Thomas  Watson  and  Son.  Witness  for  Smith,  Right 
and  Co."  That  the  plaintiff  accepted  this  bill,  by  writing  on  it,  "Ac- 
cepted John  Price:"  and  that  the  plaintiff  wrote  on  the  back  of  it— 
"Messieurs  Freame  and  Barclay,  pray  pay  forty  pounds  for  John 
Price." 

That  this  bill  being  so  accepted  was  indorsed  to  the  defendant 
for  a  valuable  consideration,  and  left  at  his  bankers  for  payment,  and 
was  paid  by  order  of  the  plaintiff,  and  taken  up. 

Both  these  bills  were  forged  by  one  Lee,  who  has  been  since  hanged 
for  forgery. 

The  defendant  Neal  acted  innocently  and  bona  fide,  without  the 
least  privity  or  suspicion  of  the  said  forgeries  or  of  either  of  them; 
and  paid  the  whole  value  of  those  bills. 

The  jury  found  a  verdict  for  the  plaintiff;  and  assessed  damages 
£80.  and  costs  40s,  subject  to  the  opinion  of  the  Court  upon  this  ques- 
tion— 

"Whether  the  plaintiff,  under  the  circumstances  of  the  case,  can 
recover  back,  from  the  defendant,  the  money  he  paid  on  the  said  bills, 
or  either  of  them." 

Lord  Mansi^iEld  stopt  [defendant's  counsel]  from  going  on;  say- 
ing that  this  was  one  of  those  cases  that  could  never  be  made  plainer 
by  argument. 

It  is  an  action  upon  the  case,  for  money  had  and  received  to  the 
plaintiff's  use.  In  which  action,  the  plaintiff  cannot  recover  the 
money,  unless  it  be  against  conscience  in  the  defendant,  to  retain 
it;   and  great  liberality  is  always  allowed,  in  this  sort  of  action. 

But  it  can  never  be  thought  unconscientious  in  the  defendant,  to 
retain  this  money,  when  he  has  once  received  it  upon  a  bill  of  exchange 
indorsed  to  him  for  a  fair  and  valuable  consideration,  which  he  had 
bona  fide  paid,  without  the  least  privity  or  suspicion  of  any  forgery. 

Here  was  no  fraud:  no  wrong.  It  was  incumbent  upon  the  plain- 
tiff, to  be  satisfied  "that  the  bill  drawn  upon  him  was  the  drawer's 
hand,"  before  be  accepted  or  paid  it;  but  it  was  not  incumbent  upon 
the  defendant,  to  inquire  into  it.  Here  was  notice  given  by  the  defend- 
ant to  the  plaintiff  of  a  bill  drawn  upon  him :  and  he  sends  his  serv- 
ant to  pay  it  and  take  it  up.    The  other  bill,  he  actually  accepts ;   after 


Sec.  2)  SPECIFIC  APPLICATIONS   OF  THE    DOCTRINH  181 

which  acceptance,  the  defendant  innocently  and  bona  fide  discounts 
it.  The  plaintiff  lies  by,  for  a  considerable  time  after  he  has  paid 
these  bills ;  and  then  found  out  "that  they  were  forged :"  and  the 
forger  comes  to  be  hanged.  He  made  no  objection  to  them,  at  the 
time  of  paying  them.  Whatever  neglect  there  was,  was  on  his  side. 
The  defendant  had  actual  encouragement  from  the  plaintiff  himself, 
for  negotiating  the  second  bill,  from  the  plaintiff's  having  without  any 
scruple  or  hesitation  paid  the  first :  and  he  paid  the  whole  value,  bona 
fide.  It  is  a  misfortune  which  has  happened  without  the  defendant's 
fault  or  neglect.  If  there  was  no  neglect  in  the  plaintiff,  yet  there  is 
no  reason  to  throw  off  the  loss  from  one  innocent  man  upon  another 
innocent  man :  but,  in  this  case,  if  there  was  any  fault  or  negligence 
in  any  one,  it  certainly  was  in  the  plaintiff,  and  not  in  the  defendant. 
Pjjr  Cur'.    Rule — That  the  postea  be  delivered  to  the  defendant 


NEAL  V.  COBURN. 

(Supreme  Judicial  Court  of  Maine,  189S.     92  Me.  139,  42  Atl.  348,  69  Am. 

St.  Rep.  495.) 

Agreed  statement. 

Assumpsit  to  recover  $250  paid  by  tlie  plaintiffs  to  the  defendant 
for  a  check  which  was  found  to  be  a  forgery. 

Emery,  J.^*  Haven  was  a  depositor  in  the  Bay  State  Trust  Com- 
pany, a  bank  in  Boston.  A  written  instrument  purporting  to  be  his 
check  upon  that  bank,  payable  to  Crew  or  order,  was  by  Crew  indorsed 
for  value  to  Coburn,  the  defendant.  Coburn  indorsed  it  for  value 
to  Neal  &  Quimby.  That  firm  indorsed  it  for  value  to  Furbish,  Butler 
&  Oakes.  The  latter  firm  indorsed  it  for  collection  to  the  Phillips 
National  Bank.  The  Phillips  Bank  indorsed  it  for  collection  to  the 
Commonwealth  Bank  of  Boston,  which  bank  presented  it  for  payment 
through  the  clearing  house  to  the  Bay  State  Trust  Company,  the  bank 
upon  which  it  was  drawn.  The  Bay  State  Trust  Company  paid  it  as 
Haven's  check,  marked  it  "Paid,"  and  charged  the  amount  to  Haven's 
account.  Three  days  afterwards  it  was  discovered  that  the  drawer's  , 
(Haven's)  signature  was  forged,  and  the  paper  was  returned  through 
the  same  channel  to  Neal  &  Quimby,  the  plaintiffs,  who  refunded  the 
amount,  and  in  their  turn  presented  it  to  Coburn,  the  defendant,  and 
demanded  of  him  to  refund  the  amount  in  his  turn,  which  he  refused 
to  do ;  hence  this  action  for  money  had  and  received  to  enforce  such 
refunding. 

It  is  conceded  that  Neal  &  Quimby  cannot  maintain  this  action  un- 
less the  Bay  State  Trust  Company  could  do  so  had  all  the  intermediate 
indorsers  refused  to  refund.  The  question  therefore  is :  Assuming 
the  good  faith  of  all  parties,  who  shall  bear  the  loss  in  such  case, — the 

84  The  statement  of  facts  is  abridged. 


182  BENEFITS   CONFERRED   BY   MISTAKE  (Ch.  2 

first  innocent  indorser  for  value,  or  the  bank  which  accepted  the  paper 
as  genuine,  and  paid  it  as  the  check  of  its  depositor? 

Since  a  check  belongs  to  that  class  of  written  instruments  called 
"commercial  paper,"  the  question  stated  is  not  so  much  one  of  abstract 
justice  in  the  particular  case,  as  it  is  of  what  is  the  established  or 
workable  rule  in  this  class  of  cases.  Commercial  paper  has  long  been 
governed  by  special  rules,  which,  while  designed  to  insure  justice,  are 
also  designed  to  insure  the  free  and  safe  use  of  an  indispensable  com- 
mercial agency.  The  commercial  world  needs  and  seeks  for  the  plain 
workable  rule,  rather  than  for  the  somewhat  uncertain  abstract  right 
in  each  case.  We  think  such  a  rule,  decisive  of  this  case,  has  been 
long  and  firmly  established. 

A  check  is  in  form  and  nature  a  species  of  bills  of  exchange,  and  is 
pro  tanto  governed  by  the  same  rules  (Foster  v.  Paulk,  41  Me.  425) ; 
hence  decisions  as  to  bills  of  exchange  upon  this  question  are  applica- 
ble to  this  case.  In  1715,  in  an  action  by  an  indorsee  against  the  ac- 
ceptor of  a  bill  of  exchange,  tried  before  Lord  Raymond  in  the  king's 
bench  court,  sitting  at  Guildhall,  to  hear  commercial  cases,  it  was  held 
that  the  acceptance  sufficiently  proved  the  signature  of  the  drawer. 
Evidence  offered  by  the  acceptor  to  affirmatively  prove  the  bill  to  be  a 
forgery  was  rejected,  one  of  the  reasons  given  being  "the  danger  to 
negotiable  notes."  Jenys  v.  Fowler,  2  Strange,  931.  In  1762,  before 
Lord  Mansfield,  in  the  king's  bench,  then  also  sitting  at  Guildhall,  was 
tried  an  action  for  money  had  and  received  to  recover  back  money 
paid  to  an  innocent  indorsee  of  a  bill  of  exchange  by  the  drawee.  The 
signature  of  the  drawer  was  forged.  Lord  Mansfield  stopped  the 
defendant's  counsel,  saying  the  case  could  not  be  made  plainer  by  argu- 
ment, and  ordered  judgment  for  the  defendant.  Price  v.  Neal,  3  Bur- 
rows, 1355.  In  1815  the  question  came  before  the  common  pleas  also 
then  sitting  in  London.  The  banker  sought  by  an  action  for  money 
had  and  received  to  recover  back  money  paid  by  him  to  an  innocent 
holder  of  a  bill  of  exchange  bearing  a  forged  acceptance  of  a  cor- 
respondent of  the  banker's.  The  plaintiff  was  nonsuited.  Smith  v. 
Mercer,  6  Taunt.  76.  In  1882  the  English  "Bills  of  Exchange  Act" 
was  passed,  "to  codify  tlie  law  relating  to  bills  of  exchange,  cheques 
and  promissory  notes."  In  section  54  it  was  enacted  that  "the  acceptor 
of  a  bill  by  accepting  it  is  precluded  from  denying  to  a  holder  in  due 
course  the  existence  of  the  drawer,  the  genuineness  of  his  signature, 
and  his  capacity  and  authority  to  draw  the  bill."  4  Eng.  Ruling  Cas. 
159,  160.  The  rule  stated  by  Lord  Raymond,  in  1715,  seems  to  have 
become  firmly  established  in  that  great  commercial  country.*'     *     *     * 

The  only  allusion  to  the  rule  we  have  found  in  the  published  opinions 

86  Here  follows  an  extended  discussion  of  the  American  authorities,  which 
are  shown  to  be  in  accord  with  the  IDnslish  doctrine  and  to  recognize  that  "a 
rule  so  well  established  and  so  firmly  rooted  in  the  jurisprudence  of  the  coun- 
try ought  not  to  be  overruled  or  disregarded." 


Sec.  2)  SPECIFIC   APPLICATIONS   OF  THE    DOCTRINE  183 

of  this  court  is  in  Belknap  v.  Davis,  19  Me.  457,  in  1841,  where,  in 
an  action  by  the  holder  against  the  acceptor  of  a  bill  of  exchange,  it 
was  held  that  "the  acceptance  admits  the  signature  of  the  drawer 
and  tlie  authority  to  draw."  So  far  as  it  goes,  this  would  seem  to  be 
in  the  same  line  with  the  decisions  above  cited  and  quoted  from,  and 
would  seem  to  indicate  that  the  rule  so  long  and  firmly  upheld  by  those 
decisions  is  in  harmony  with  the  law  of  commercial  paper  in  this  state. 

In  some  cases  the  courts  have  been  led  to  inquire  whether  the  condi- 
tion of  the  holder  had  changed  between  the  payment  of  the  check  and 
notice  to  him  of  the  forgery,  and  to  hold  that,  if  the  holder  had  suf- 
fered no  loss  by  reason  of  the  payment,  he  should  refund  the  amount 
to  the  bank  or  drawer.  The  rule  cited  does  not  make  any  such  dis- 
tinction,— does  not  call  for  any  inquiry  into  the  condition  of  the  holder. 
To  do  so  is  to  abandon  the  rule,  and  with  it  all  certainty.  It  would 
leave  every  person  receiving  payment  on  a  check  in  complete  uncer- 
tainty as  to  whether  and  when  it  was  in  fact  finally  paid.  It  would 
be  a  destructive  blow  to  the  usefulness  of  checks  as  an  instrumentality 
of  trade.  It  is  also  against  the  reason  and  equity  of  the  rule  as  stated 
by  the  courts  recognizing  it,  and  hence  is  inconsistent  with  the  rule. 
Wherever  the  rule  is  upheld,  the  doctrine  of  such  cases  must  be  re- 
jected. 

The  reason  usually  given  for  the  rule  is  that  it  is  impracticable  for 
the  indorsee  or  holder  of  a  bill  of  exchange  or  check  to  know  or  learn 
whether  the  signature  of  the  drawer  is  genuine,  and  that  the  bank  or 
other  drawee  has  the  best  means  of  knowing  or  learning  the  fact;  or, 
as  sometimes  expressed,  the  bank  may  be  presumed  to  know  the  sig- 
nature of  its  depositor,  and  the  acceptor  the  signature  of  his  business 
correspondent.  Lord  Mansfield,  in  Price  v.  Neal,  supra,  compared  the 
equities.  He  said  that  the  action  for  money  had  and  received  could 
not  be  maintained,  unless  it  was  against  conscience  in  the  defendant  to 
retain  it,  and  that  it  was  not  against  conscience  for  an  innocent  holder 
to  retain  money  paid  to  him  by  the  drawee  of  a  bill  of  exchange  which 
he  had  in  good  faith  paid  value  for.  As  between  parties  equally  inno- 
cent, there  seems  to  be  no  more  equity  in  throwing  off  the  loss  from 
one  to  the  other  than  in  leaving  it  where  it  fell.  In  cases  like  these, 
however,  where  the  loss  fell  in  the  regular  course  of  business  upon  the 
bank,  which  could  have  known  and  should  have  known  the  forgery,  it 
seems  positively  inequitable  to  throw  off  that  loss  upon  an  innocent 
man  who  had  much  less  opportunity  of  knowing.  As  also  said  by 
Lord  Mansfield,  in  Price  v.  Neal,  if  negligence  is  to  be  considered,  it 
was  as  much,  if  not  more,  in  the  drawee  or  bank,  as  in  the  holder. 
But  whatever  the  reason  or  equity  of  the  rule,  and  however  much  it 
may  be  criticised  by  text  writers  and  theorists,  it  has  been  so  long  es- 
tablished and  so  explicitly  recognized  by  the  courts  in  commercial  com- 
munities that  it  should  stand  as  the  rule  until  modified  by  legislative 
action.     It  evidently  has  been  found  to  be  a  workable  rule,  and  its 


184  BENEFITS   CONFERRED   BY   MISTAKE  (Ch.  2 

plainness  and  certainty  should  not  be  obscured  by  fine  judicial  distinc- 
tions, confusing  to  the  lay  mind. 

It  has  been  suggested  that  this  rule  breaks  against  another  rule  of 
the  law  of  commercial  paper,  viz.  that  the  defendant,  by  indorsing  the 
check,  guarantied  to  every  subsequent  holder  the  genuineness  of  the 
signature  of  the  drawer.  But  the  bank  upon  which  the  check  was 
drawn  did  not  become  a  holder.  It  did  not  purchase  the  check.  The 
bank  paid  it, — extinguished  it.  It  was  no  longer  a  check,  and  could  no 
longer  have  a  holder  as  such.  It  had  become  merely  a  voucher.  Skow- 
hegan  Bank  v.  Maxfield,  83  Me.  576,  22  Atl.  479. 

The  plaintiffs  cite  cases  in  which  it  was  found  that  the  bank  was  in- 
duced by  the  conduct  of  the  holder  to  assume  the  check  to  be  genuine 
without  investigation.  In  other  cases  it  was  found  that  tlie  holder 
knew  or  had  reason  to  know  of  the  forgery,  or  was  put  upon  inquiry 
before  taking  the  check.  In  these  cases  it  was  held  tliat  the  holder  was 
without  the  rule. 

In  this  case,  however,  no  such  facts  can  be  found.  Haven,  the  sup- 
posed drawer,  was  occupying  a  summer  cottage  in  the  neighborhood. 
The  check  was  written  upon  one  of  his  blanks  taken  from  his  check 
book.  The  signature  was  so  good  an  imitation  that  the  bank  accepted 
it.  Crew,  the  forger,  had  previously  received  genuine  checks  from 
Haven.  He  was  a  boarder  at  the  defendant's  hotel  or  boarding  house. 
While,  after  the  event,  the  defendant  now  believes  Crew  to  have  been 
an  impostor,  nothing  in  the  case  shows  that  he  so  believed  or  had  rea- 
son to  so  believe  before  the  event.  It  is  true,  he  was  told  by  Crew  that 
Haven  desired  the  check  to  be  held  about  three  weeks  before  present- 
ment; but  tliat  was  no  reason  for  suspecting  the  genuineness  of  the  sig- 
nature. It  might  have  generated  a  doubt  as  to  the  solvency  of  Haven, 
but  no  more.  While,  perhaps,  a  banker  would  have  hesitated  to  ac- 
cept the  check  under  the  circumstances,  we  find  in  them  nothing  that 
would  naturally  have  deterred  a  man  like  tlie  plaintiff.  In  the  New 
York  case,  Goddard  v.  Merchants'  Bank,  4  N.  Y.  149,  the  circumstan- 
ces surrounding  the  transfer  of  the  check  from  the  forger  to  the  first 
holder  were  even  more  suspicious  than  here,  and  were  held  to  be  in- 
sufficient to  affect  the  holder. 

We  find  the  plaintiff  was  an  innocent  holder  for  value,  and  that  the 
loss  by  the  forgery  fell,  in  the  course  of  business,  upon  the  bank.  We 
hold  that  the  defendant,  though  he  has  suffered  no  loss,  is  protected  by 
the  rule  cited,  and  that,  under  the  rule,  the  loss  cannot  be  tlirown  off 
the  bank  upon  him. 

It  is  conceded  that  the  defendant's  verbal  promise  to  refund,  made 
under  a  misapprehension  of  tlie  law,  was  without  consideration,  and 
hence  not  binding. 

Plaintiffs  nonsuit."* 

8«  Accord:  Germania  Bank  of  Minneapolis  r.  Boutell  (1S95)  60  Minn.  1S9, 
G2  N.  W.  327,  27  L.  R.  A.  635,  51  Am.  St.  Rep.  519.  in  which  case  Mitchell,  J., 
said:    "Many  modern  text  writers,  some  of  them  of  learning  and  ability,  have 


Sec.  2)  SPECIFIC   APPLICATIONS   OF  THE    DOCTRINE  185 

assailed  the  correctness  of  this  doctrine,  contending  that  the  general  rule  as 
to  money  paid  under  mistake  of  fact  should  apply,  and  that  the  law  ought 
to  be  that  the  bank,  although  at  fault  in  not  discovering  the  forgery  of  its 
customer's  signature,  can  recover  even  from* an  innocent  holder,  if  he  will 
then  be  in  no  worse  condition  than  if  the  bank  had  refused  to  pay  the  draft 
or  check.  See  2  Pars.  Notes  &  B.  80 ;  Morse,  Banks,  c.  33 ;  Daniel,  Neg,  lust. 
c.  42 ;  also,  Am.  Law  Rev.  April,  1875,  p.  411,  and  note  to  People's  Bank  v. 
Franklin  Bank  (1SS9)  17  Am.  St.  Rep.  889  (88  Tenn.  299,  12  S.  W.  716,  6  L.  R. 
A.  724).  We  shall  not  enter  upon  a  consideration  of  the  soundness  of  the  ar- 
gument against  the  doctrine,  or  as  to  which  rule  we  would  adopt  if  the  ques- 
tion was  res  Integra,  because  we  do  not  feel  at  liberty  to  overrule  or  disregard 
a  doctrine  so  well  established  and  so  firmly  rooted  in  the  commercial  law  of 
the  country.  If  the  rule  is  incorrect  or  works  badly  in  practice,  its  change 
must  be  left  to  the  legislature.  We  may  say,  however,  that  the  opponents 
of  the  doctrine  seem  to  have  found  no  followers  among  the  courts.  We  may 
also  suggest  that  perhaps  the  courts  themselves  have  given  the  opponents  of 
the  doctrine  an  unnecessary  vantage  ground,  by  frequently  placing  it  exclu- 
sively on  the  narrow  ground  of  actual  negligence  on  part  of  the  drawee  in  not 
discovering  the  forgery,  because  he  was  bound  to  know  the  signature  of  hig 
own  customer  or  cori'espondent.  It  is  undoubtedly  true  that  he  is  in  better 
position  than  a  stranger  to  know  his  customer's  signature,  and  that  men  have 
a  right  to  deal  with  checks  and  drafts  on  that  assumption ;  but  it  does  not 
seem  to  us  that  the  doctrine  rests  entirely  on  this  narrow  basis  of  actual  neg- 
ligence on  part  of  the  drawee.  The  money  of  the  commercial  world  is  no  lon- 
ger coin.  The  exchanges  of  commerce  are  now  made  almost  entirely  by  means 
of  drafts  and  checks.  It  was  largely  in  deference  to  this  fact  that  the  recov- 
ery of  money  paid  on  paper  of  this  kind,  to  which  the  drawer's  signature  was 
forged,  was  made  an  exception  to  the  general  rule  as  to  the  recovery  of  money 
paid  under  a  mistake  of  fact.  In  view  of  the  use  of  this  class  of  paper  as 
money,  it  was  considered  that  public  policy  required  that,  as  between  the 
drawee  and  good-faith  holders,  the  drawee  bank  should  be  deemed  the  place 
of  final  settlement  where  all  prior  mistakes  and  forgeries  should  be  corrected 
and  settled  once  for  all,  and,  if  not  then  corrected,  payment  should  be  treat- 
ed as  final;  that  there  must  be  a  fixed  and  definite  time  and  place  to  adjust 
and  end  these  things  as  to  innocent  holders;  and  that  that  time  and  place 
should  be  the  paying  bank  and  the  date  of  payment;  and  that,  if  not  done 
then,  the  failure  to  do  so  must  be  deemed  the  constructive  fault  of  the  payee 
bank,  which  must  take  the  consequences." 

Section  62  of  the  Negotiable  Instruments  Law,  providing  that  "the  acceptor 
by  accepting  the  instrument  *  *  *  admits  (1)  the  existence  of  the  drawer, 
the  genuineness  of  his  signature,"  is  held  to  be  an  adoption  of  the  rule  of 
Price  V.  Neal,  and  to  apply  to  a  payment  as  well  as  to  an  acceptance  by  the 
drawer  of  a  forged  bill  or  check.  National  Bank  of  liolla  v.  Fii-st  Nat.  Bank 
ofl  Salem  (1010)  141  Mo.  App.  719,  12.j  S.  W.  513;  Cherokee  Nat.  Bank  v. 
Union  Trust  Co.  (1012)  33  Okl.  342,  125  Pac.  464  (overruling  American  Express 
Co.  V.  State  Nat.  Bk.  [1911]  27  Okl.  824,  113  Pac.  711,  33  L.  R.  A.  [N.  S.]  188, 
involving  a  controversy  arising  prior  to  the  adoption  of  the  Negotiable  Instru- 
ments Law). 

Contra:  First  Nat.  Bank  v.  Bank  of  Wyndmere  (1906)  15  N.  D.  299,  108  N. 
W.  546,  10  L.  R.  A.  (N.  S.)  49,  125  Am.  St.  Rep.  588  (apparently  overlooking 
the  Negotiable  Instruments  Law). 

See  also  4  Harvard  Imw  Review,  297,  "The  Doctrine  of  Price  v.  Neal,"  a 
defense  of  the  rule  on  the  ground  of  purchase  for  value,  by  the  late  Dean  Ames. 
This  view  Is  criticized  in  Keener,  Quasi  Contracts,  154  et  seq.,  note.  An  ex- 
cellent brief  discussion  of  the  subject  is  found  in  Woodward,  Quasi  Contracts. 
§§  80-88. 

Payment  of  Forged  Paper  by  Supposed  Maker. — "It  seems  to  us,  from 
the  review  of  the  authorities,  that  it  is  a  rule  of  commercial  law  too  firmly 
established  to  be  shaken,  being  sustained  by  an  unbroken  line  of  authorities 
for  more  than  a  century,  that  the  drawee  of  a  Will  of  exchange  is  presumed 
to  know  the  handwriting  of  the  drawer,  and  a  fortiori  the  maker  of  a  negotia- 
ble note  is  presumed  to  know  his  own  signature,  and  if  the  drawee  accepts  or 
pays  the  bill,  or  the  maker  pays  the  negotiable  note,  in  the  hands  of  a  bona 


186  BENEFITS   CONFERRED   BY   MISTAKE  (Ch.  2 

FULLER  V.  SMITH. 

(Nisi  Prius,  before  Abbott,  C.  J.,  1824.    1  Car.  &  P.  197.) 

This  was  an  action  to  recover  the  amount  of  a  bill  of  exchange, 
which  had  been  discounted  by  the  plaintiffs  for  the  defendants,  and 
which  afterwards  turned  out  to  be  a  forgery.  The  bill  purported  to  be 
drawn  by  a  person  named  Lunn,  and  accepted  by  George  Norman  & 
Son,  payable  at  the  plaintiffs',  who  were  their  bankers,  and  indorsed  by 
Lunn  and  one  Robert  Simpson. 

The  forgery  was  clearly  proved. 

For  the  defendants,  their  clerk  was  examined ;  who  swore  that 
the  defendants  were  the  agents  of  Simpson,  and  had  paid  over  the 
money  to  him  before  they  had  any  notice  of  the  forgery;  on  his  cross- 
examination,  he  admitted  that  there  was  a  running  account  between 
the  defendants  and  Simpson,  and  entries  in  the  books  on  both  sides. 
These  books  were  not  produced. 

Abbott,  C.  J.  The  only  question  of  fact  in  this  case  is,  whether 
the  defendants  paid  over  the  money  to  Simpson  before  they  had  notice 
of  the  forgery ;  but  I  am  of  opinion,  in  point  of  law,  that  they  are  lia- 
ble, whether  they  did  so  or  not.  With  respect  to  the  argument,  that 
the  plaintiffs  ought  to  have  known  the  handwriting  of  the  acceptors,  I 
am  of  opinion,  that  a  banker  is  bound  to  know  the  handwriting  of 
•those  who  draw  on  him,  as  far  as  regards  paying  bills  so  drawn,  but 
not  when  discounting  a  bill ;  for  his  attention  is  not  called  to  it  then. 
My  opinion  therefore  is,  that  the  plaintiffs  in  this  case  are  entitled  to 
a  verdict.     His  lordship  then  requested  the  jury  to  say,  whether  they 

fide  holder,  to  whicli  the  drawer's  or  maker's  narae  has  been  forged,  he  Is 
bound  by  the  act  and  cannot  recover  back  the  money  so  paid."  Johnston  v. 
liank  (1885)  27  W.  Va.  859.  55  Am.  Rep.  H15. 

Contra:    Welch  v.  Goodwin  (1877)  123  Mass.  71,  25  Am.  Rep.  24. 

Recovery  of  Momey  I'aid  upon  a  Raised  Draft  or  Check. — It  is  well 
settled  that  a  drawee  innocently  i)aying  a  negotiable  instrument,  the  amount 
of  which  has  been  raised,  can  recover  from  the  one  to  whom  such  amount  has 
been  i)aid.  "The  plaiutifts,  as  drawees  of  the  bill,  were  only  held  to  a  knowl- 
edge of  the  signature  of  their  correspondents,  the  drawers;  by  accepting  and 
paying  the  bill  they  only  vouched  for  the  gentiineness  of  such  signatures,  and 
were  not  held  to  a  knowledge  of  the  want  of  genuineness  of  any  other  part  of 
the  Instrument."  White  v.  Continental  National  Bank  (1S7U)  G4  N.  Y.  31G, 
320,  21  Am.  Rep.  612. 

It  has  been  suggested  that  this  doctrine  has  been  changed  by  section  G2  of 
the  Negotiable  Instruments  Law.  Brannan,  Negotiable  Instruments  Law 
(2d  Ed.)  7.3,  74. 

Culpable  delay  in  giving  notice  of  the  alteration,  if  prejudicial  to  defendant, 
bars  a  recovery  under  tlie  doctrine  of  change  of  position.  Continental  Nation- 
al Bank  v.  Metropolitan  National  Bank  (1903)  107  111.  App.  455,  461.  See  also 
Brown  v.  People's  National  Bank  (1912)  170  Mich.  416,  136  N.  W.  506,  40  L. 
R.  A.  (N.  S.)  657. 

In  Crocker-Wooiworth  National  Bank  v.  Nevada  Bank  (1903)  139  Cal.  564, 
73  Pac.  456,  63  L.  R.  A.  245,  96  Am.  St.  Rep.  169,  it  was  held  that,  even  though 
plaintiff  was  not  negligent  nor  guilty  of  unreasonable  delay  in  notifying  de- 
fendant, yet  if  defendant  has  changed  its  position  no  recovery  can  be  had. 


Sec.  2)  SPECIFIC  APPLICATIONS   OF  THE    DOCTRINE  1S7 

were  satisfied  of  the  fact  of  the  money  having  been  paid  over  before 
notice  of  the  forgery ;  and  they  stated  that  they  were  not  satisfied. 
Verdict  for  the  plaintiflf. 


ROUVANT  V.  SAN  ANTONIO  NAT.  BANK. 

(Supreme  Court  of  Texas,  1S85.     63  Tex,  610.) 

Appeal  from  Bexar.    Tried  below  before  the  Hon.  Geo.  H.  Noonan. 

William  C.  Igel  brought  this  suit  to  recover  $550  claimed  to  be  a 
balance  of  a  deposit  still  due  him.  The  bank  claimed  that  it  had  paid 
out  the  amount  to  appellant  on  a  draft  drawn  in  his  favor  by  Igel,  and 
set  forth  the  draft.  Igel  claimed  that  the  draft  was  a  forgery.  The 
bank  then  made  Rouvant  a  party,  claiming  that  the  money  had  been 
paid  to  him  by  reason  of  his  having  received  and  indorsed  the  draft, 
etc.,  and  prayed  for  judgment  over  against  him,  in  the  event  Igel  re- 
covered against  it.  Rouvant  claimed  that  the  bank  ought  to  have  de- 
tected the  forgery,  etc. ;  that  it  delayed  five  or  six  weeks  in  the  dis- 
covery of  tlie  forgery. 

It  seems  that  Rouvant  was  slightly  acquainted  with  both  Igel  and 
a  man  by  the  name  of  Nichols ;  that  the  latter,  late  one  evening,  pur- 
chased of  Rouvant  a  fine  watch  and  diamond,  and  gave  him  the  check 
in  payment.  He  wrote  and  signed  the  check  in  Igel's  name  in  the  pres- 
ence of  Rouvant. 

Upon  the  trial  the  court  rendered  judgment  in  favor  of  Igel  against 
the  bank,  and  in  favor  of  the  bank  over  against  Rouvant,  and  the  lat- 
ter appealed. 

Watts,  J.  Com.  App.  A  bank,  in  accepting  and  paying  a  draft 
drawn  by  a  customer,  is  generally  held  to  know  the  signature,  and, 
if  a  forged  draft  is  accepted  and  paid,  the  bank,  as  a  general  rule,  will 
not  be  heard  to  assert  a  mistake  as  to  the  signature.  City  Bank  v.  Na- 
tional Bank,  45  Tex.  218;  Price  v.  Neal,  3  Burr.,  1354;  Levy  v.  Bank 
of  the  United  States,  1  Bin.  (Pa.)  27. 

To  that  general  rule,  however,  there  are  certain  exceptions.  In  Na- 
tional Bank  of  North  America  v.  Bangs,  106  Mass.  444,  8  Am.  Rep. 
349,  it  was  said:  "But  this  responsibility,  based  upon  presumption 
alone,  is  decisive  only  when  the  party  receiving  the  money  has  in  no 
way  contributed  to  the  success  of  the  fraud,  or  to  the  mistake  of  fact 
under  which  the  payment  was  made.  If  the  loss  can  be  traced  to  the 
fault  or  negligence  of  either  party,  it  shall  be  fixed  upon  him."  Glou- 
cester Bank  v.  Salem  Bank,  17  Mass.  33.  In  the  absence  of  actual 
fault  or  negligence  on  the  part  of  the  drawee,  his  constructive  fault  in 
not  knowing  the  signature  of  the  drawer  and  detecting  the  forgery  will 
not  preclude  his  recovery  from  one  who  has  received  the  money  with 
knowledge  of  the  forgery,  or  who  took  the  check  under  circumstances 
of  suspicion,  without  proper  precautions,  or  whose  conduct  has  been 


188  BENEFITS   CONFERRED   BY   MISTAKE  (Ch.  2 

such  as  to  mislead  the  drawee,  or  to  induce  him  to  pay  the  check  with- 
out the  usual  scrutiny  or  other  precautions  against  mistake  or  fraud." 
See,  also,  Ellis  v.  Insurance  &  Trust  Co.,  4  Ohio  St.  628,  64  Am.  Dec. 
610. 

Here  the  check  had  not  gone  into  circulation ;  it  was  drawn  in  favor 
of  Rouvant  and  was  indorsed  and  collected  by  him.  At  that  time  he 
was  a  responsible  merchant  in  the  city  of  San  Antonio,  and  was  known 
to  the  bank  as  such.  When  the  check  was  presented,  payable  to  and 
indorsed  by  him,  the  bank  might  well  assume  that  there  were  no  sus- 
picious circumstances  attending  its  execution,  and  no  question  as  to  the 
identity  of  the  person  who  drew  and  signed  it.  At  least  his  receiving 
and  indorsing  the  check  would  have  a  tendency  to  mislead,  and  throw 
the  officers  of  the  bank  off  their  guard,  and  cause  them  to  accept  and 
pay  the  check  without  subjecting  it  to  the  same  scrutiny  as  if  it  had 
been  indorsed  and  presented  by  a  stranger. 

If  Rouvant,  at  the  time  the  check  was  paid,  had  informed  the  bank 
of  the  suspicious  circumstances  under  which  it  was  made,  or  that  he 
was  not  certain  as  to  the  identity  of  the  drawer,  doubtless  the  bank 
would  have  subjected  the  check  to  such  critical  examination  as  per- 
haps would  have  resulted  in  the  detection  of  the  forgery. 

But  a  short  time  before  this  Rouvant  had  other  transactions  with 
Nichols,  and  had  received  from  him  a  check  upon  the  bank  under  his 
own  signature.  This  he  had  presented  and  collected.  Here  he  accepts 
a  check  for  $550,  executed  by  the  same  individual,  but  under  a  different 
signature,  in  the  name  of  another  person.  Then  can  it  be  said  that  he 
was  without  fault  in  receiving,  indorsing  and  collecting  the  check,  and 
not  informing  the  bank  of  the  suspicious  circumstances  attending  its 
execution  ?  The  loss  is  attributable  to  Rouvant's  negligence,  and  upon 
him  it  should  be  fixed. 

There  is  nothing  in  the  objection  that  the  delay  in  detecting  the  for- 
gery precludes  a  recovery  upon  the  part  of  the  bank.  None  of  the  sus- 
picious circumstances  attending  the  execution  of  the  check,  though 
known  to  Rouvant,  were  known  to  the  bank.  There  was  nothing  which 
would  suggest  to  the  bank  a  necessity  for  a  more  critical  examination 
of  the  check.  The  forgery  was  discovered  as  soon  as  Igel  examined 
his  bank  statement,  and  Rouvant  was  immediately  thereafter  informed 
of  it. 

Our  conclusion  is  that  there  is  no  error  in  the  judgment,  and  that 
it  ought  to  be  affirmed.    Affirmed.*^ 

87  One  who  purchases  negotiable  paper  from  a  stranger,  without  inquiry  as 
to  his  identity  or  his  right  to  the  paper,  is  generally  deemed  guilty  of  such  neg- 
ligence as  to  entitle  the  drawee,  Avho  has  honored  such  paper,  to  recover  the 
amount  thereof  on  discovering  that  it  was  a  forgery.  Ellis  v.  Ohio  Life  In- 
surance &  Trust  Co.  (1S55)  4  Ohio  St.  628,  64  Am.  Rep.  610;  First  Nat.  Bank 
of  Uanvers  v.  First  Nat.  Bank  of  Salem  (1890)  151  Mass.  280,  24  N.  E.  44,  21 
Am.  St.  Rep.  450.  But  a  few  decisions  are  contra.  Commercial  &  Farmers 
Nat.  Bank  of  Baltimore  v.  First  Nat.  Bank  of  Baltimore  (1868)  30  Md.  11.  96 


Sec.  2)  SPECIFIC  APPLICATIONS   OF  THE    DOCTRINE  189 

CARPENTER  v.  NORTHBOROUGH  NAT.  BANK. 

(Supreme  Judicial  Court  of  Massachusetts,  4877.     123  Mass.  66.) 

Contract  for  money  had  and  received.  Trial  before  Gardner,  J., 
who  directed  a  verdict  for  the  defendant. 

Plaintiff  executed  his  note  for  $2625  to  the  order  of  William  Car- 
penter and  delivered  the  same  to  one  Jackson  (counsel  for  Carpenter)^ 
in  good  faith,  believing  that  Jackson  was  in  this  transaction  acting  for 
Carpenter.  Jackson  forged  an  indorsement  in  Carpenter's  name,  and 
himself  indorsed  the  note  over  to  defendant.  Plaintiff,  having  paid 
defendant  the  note  in  ignorance  of  the  forged  indorsement,  now  sues 
to  recover  the  sum  paid. 

Lord,  J,^^  It  is  to  be  assumed,  in  testing  the  accuracy  of  the  ruling 
of  the  learned  judge  who  presided  at  the  trial,  that  every  fact  upon 
which  there  was  evidence  for  the  jury  was  found  most  favorably  for 
the  plaintiffs. 

It  is  then  to  be  taken  that  the  signature  of  William  Carpenter  was 
forged ;  that  Jackson  misappropriated  the  funds  which  he  had  pro- 
cured upon  the  forged  indorsement ;  that  William  Carpenter  never  had 
knowledge  that  such  note  had  been  taken  in  his  name  by  Jackson,  and 
that  the  note  was  originally  obtained  from  tlie  plaintiffs  by  fraud. 
It  must  also  be  taken  to  be  settled  that  Jackson  had  no  authority  to  in- 
dorse the  name  of  William  Carpenter,  nor  to  assign  the  note  for  his 
own  benefit;  and  that  the  acts  done  in  the  premises  by  Jackson  were 
done  in  fraud  of  the  rights  of  William  Carpenter  and  of  the  plaintiffs. 
The  question  then  is :  Could  the  bank  acquire  any  title,  legal  or  equi- 
table, to  the  note  thus  originally  obtained  by  fraud  and  passed  to  it, 
not  only  in  fraud  of  the  rights  of  the  maker,  but  by  forgery  as  one  of 
the  means  of  accomplishing  the  fraud?    Certainly  it  could  not. 

The  question  sometimes  discussed,  whether  an  acceptor  is  bound 
to  know  the  genuineness  of  the  signature  of  the  drawer,  does  not  arise. 
Nor  is  it  necessary  to  consider  to  what  extent  the  rule  that  every  party 
to  mercantile  paper  warrants  the  genuineness  of  every  signature  pre- 
ceding his  is  to  be  applied.  The  plaintiffs  were  the  makers  of  the  note. 
It  was  payable  only  to  the  order  of  William  Carpenter.  Such  order 
was  never  given.    The  plaintiffs  therefore  had  never  promised  to  pay 

Am.  Dec.  554 ;  Pennington  County  Bank  v.  First  State  Bank  of  Moorhead 
(1910)  110  Minn.  263,  125  N.  W.  119,  20  L.  R.  A.  (N.  S.)  849,  136  Am.  St.  Rep. 
496. 

The  doctrine  of  Price  v.  Neal  is  not  available  to  one  who  has  paid  no  value. 
Title  Guarantee  &  Trust  Co.  v.  Haven  (1909)  190  N.  Y.  487,  493,  89  N.  E.  1082, 
1085,  25  L.  R.  A.  (N.  S.)  1308,  17  Ann.  Cas.  1131. 

[A  holder  of  forged  paper,  who  bought  in  good  faith  but  was  put  on  notice 
of  facts  calculated  to  arouse  suspicion  before  presenting  such  paper  to  the 
drawee,  cannot  claim  the  benefit  of  the  rule  of  Price  v.  Neal.  First  National 
Bank  of  Quincy  v.  Ricker  (1874)  71  111.  439,  22  Am.  Rep.  104.] 

88  A  brief  statement  of  facts  has  been  substituted  for  that  contained  in  the 
report. 


190  BENEFITS  CONFERRED  BY  MISTAKE  (Ch.  2 

the  note  to  the  bank.  The  bank  could  not  have  collected  the  note  of 
the  plaintiffs.  When  the  plaintiffs  paid  the  note  to  the  bank,  they  paid 
it  under  the  mistaken  belief  that  the  bank  was  the  legal  owner  of  the 
note,  and  had  the  right  to  collect  it.  It  was,  however,  immediately  dis- 
covered that  the  bank  had  no  such  right,  and  notice  was  at  once  given 
to  it  that  the  money  thus  paid  by  mistake  would  be  reclaimed.  It  is 
common  learning  that  ordinarily  money  paid  by  mistake  to  a  person 
not  authorized  to  receive  it  may  be  recovered  back  by  the  person  pay- 
ing. The  cases  in  which  it  has  been  held  that  money  thus  paid  can- 
not be  recovered  back  have  been  exceptions  to  the  rule,  by  reason  of 
peculiar  circumstances  attending  the  particular  payments. 

The  case  most  resembling  this,  but  less  favorable  to  the  plaintiffs, 
is  that  of  Canal  Bank  v.  Bank  of  Albany,  1  Hill  (N.  Y.)  287.  That 
was  the  case  of  the  acceptor  of  a  draft  in  favor  of  one  Bentley;  the 
name  of  Bentley  was  forged;  subsequently  the  draft  was  indorsed  by 
several  innocent  parties;  and  it  came  into  the  hands  of  the  defendant 
bank  for  collection  on  account  of  another  bank.  Upon  notice,  the  ac- 
ceptor paid  the  draft  to  the  defendant  bank,  which  did  not  disclose  the 
fact  of  its  agency,  which  bank  paid  tlie  amount  over  to  its  principal. 
Several  weeks  afterwards  it  was  discovered  that  the  name  of  Bentley 
was  forged,  too  late  to  give  notice  to  the  indorsers,  and  after  payment 
to  the  principal.  It  was  held  that  the  money  could  be  recovered  back  of 
the  defendant,  notwithstanding  the  defendant  had  paid  it  over  without 
notice,  and  notwithstanding  that  the  indorsers  could  not  be  notified  of 
the  refusal  or  the  failure  of  the  acceptor  to  pay.  It  was  said  that,  in- 
asmuch as  each  subsequent  indorser  had  paid  for  the  draft  under 
a  mistake  of  fact,  supposing  it  to  be  a  genuine  instead  of  a  forged  in- 
dorsement, he  could  recover  the  amount  which  he  paid  of  the  person 
to  whom  he  paid  it.  It  is  not  necessary  for  us  to  consider  whether 
or  not  the  rule  thus  laid  down  is  sound,  for  the  reasons,  first,  that  no 
such  question  arises  in  the  present  aspect  of  the  case,  nor  can  it  arise 
in  this  case,  inasmuch  as  Abraham  Jackson,  the  assumed  forger  of  the 
indorsement,  was  the  only  indorser  of  the  note  against  whom  any 
claim  could  arise  as  indorser ;  and  neither  law  nor  equity  could  require 
that  notice  should  be  given  to  Jackson,  to  fix  his  liability  upon  a  note 
which  he  had  passed  by  his  own  forgery  of  an  indorsement. 

Inasmuch,  therefore,  as  in  this  case  there  are  none  of  the  elements 
which  have  been  held  to  bring  a  case  within  the  exceptions  to  the  gener- 
al rule,  an  examination  of  the  exceptions  to  the  rule  is  unnecessary. 
This  is  simply  the  payment  of  a  note  to  a  party  who  has  no  legal  and  no 
equitable  interest  in  the  promise  of  the  maker,  whatever  its  rights  may 
be  as  against  Jackson,  whose  name  is  upon  the  same  paper.  The  mon- 
ey having  been  paid  by  mistake  to  a  person  who  had  no  right  to  de- 
mand it,  the  case  is  within  the  general  rule,  and  the  party  paying,  may 
recover  back  the  amount  thus  paid.  This  principle  has  been  recognized 
in  various  decisions  in  this  Commonwealth.  See  Merriam  v.  Wol- 
cott,  3  Allen,  258,  80  Am.  Dec.  69 ;  Merchants'  National  Bank  v.  Na- 


Sec.  2)  SPECIFIC   APPLICATIONS   OF  THE    DOCTRINE  191 

tional  Eagle  Bank,  101  Mass.  281,  100  Am.  Dec.  120;  Boylston  Na- 
tional Bank  v.  Richardson,  101  Mass.  287;  National  Bank  of  North 
America  v.  Bangs,  106  Mass.  441,  8  Am.  Rep.  349. 
Verdict  set  aside.*' 


CITIZENS'    BANK   v.    SCHWARZCHILD    &    SULTZBERGER 

CO. 

(Supreme  Court  of  Appeals  of  Virginia,  1909.     109  Va.  539,  64  S.  E.  954,  23 

L.  R.  A.  [N.  S.]  1092.) 

Error  to  a  judgment. of  the  Court  of  Law  and  Chancery  of  the  city 
of  Norfolk  in  an  action  of  assumpsit.  Judgment  for  the  defendant. 
Plaintiff  assigns  error. 

Buchanan,  J.""  This  is  an  action  of  assumpsit  to  recover  money 
paid  by  the  plaintiff  under  an  alleged  mistake  of  fact.  Upon  the  issue 
of  non  assumpsit,  the  whole  matter  of  law  and  fact  was  submitted  to 
the  court  and  a  judgment  rendered  in  favor  of  the  defendant. 

The  material  facts  of  the  case  are  that  on  the  4th  day  of  November, 
1907,  the  defendants,  the  Schwarzschild  &  Sultzberger  Company,  a 
corporation,  presented  through  the  Norfolk  National  Bank  of  Norfolk 
for  payment  15  coupons  of  $70  each,  due  on  the  1st  day  of  that  month, 
taken  from  bonds  held  by  the  defendant.  The  bonds  from  which  the 
coupons  were  taken  were  issued  by  the  Jamestown  Hotel  Corporation 
and  held  by  the  defendant.    The  coupons  were  in  the  following  words : 

"$70.00, 

"The  Jamestown  Hotel  Corporation  will  pay  to  bearer,  at  the  Citi- 
zens' Bank  of  Norfolk,  Virginia,  upon  surrender  of  this  coupon,  sev- 
enty dollars  in  gold  coin  of  the  United  States,  on  the  first  day  of  No- 
vember, A.  D.,  1907,  for  one  year's  interest  then  due  on  its  bond,  No.  1. 

"Chas.  M.  Barnett,  Treasurer." 

At  the  time  the  coupons  were  presented  for  payment  at  the  plaintiff 
bank,  the  Jamestown  Hotel  Corporation,  the  maker  thereof,  had  on 
deposit  with  the  plaintiff  the  sum  of  $1,898.97;  but  on  the  16th  day  of 
the  preceding  month  an  execution  creditor  of  the  hotel  corporation 
whose  judgment  amounted  to  more  than  $14,000  caused  a  summons  on 
suggestion  to  be  served  upon  the  plaintiff  bank.  When  the  summons 
was  served  upon  the  president  of  the  plaintiff  bank,  he  notified  the 
other  ofiicers  of  the  bank  and  tlie  bookkeeper  in  charge  of  the  account 

80  "Tlie  law  is  that,  where  a  person  has  paid  a  negotiable  paper  to  another 
on  a  forged  indorsement,  and  the  latter  is  innocent  of  the  forgery,  it  is  incum- 
bent upon  the  person  so  paying  to  give  notice  of  the  forgery  to  the  other  per- 
son within  a  reasonable  time  after  discovery  of  the  fact ;  and  he  may  lose 
his  right  of  action  for  failure  to  give  the  notice,  provided  that  his  laches  in 
this  respect  has  subjected  the  other  to  loss.  What  is  reasonable  notice  in  such 
a  case  is  generally  a  question  for  the  jtiry."  Yatesville  Banking  Co.  v.  Fourth 
Nat.  Bank  (1911)  10  Ga.  App.  1,  72  S.  E.  528. 

80  Portions  of  the  opinion  are  omitted. 


192  BENEFITS  CONFERRED  BY  MISTAKE  (Ch.  2 

not  to  pay  out  any  part  thereof  except  by  order  of  the  court.  Subse- 
quently, and  before  the  coupons  in  question  were  paid,  the  existing 
account  of  the  hotel  corporation  which  had  been  gamisheed  in  the 
hands  of  the  plaintifif  was  transferred  from  the  active  ledger  of  the 
bank  to  the  inactive  department  and  marked  "Corp.,"  and  a  new  ac- 
count opened  with  the  hotel  corporation,  then  in  a  failing  condition 
and  being  operated  under  the  direction  of  the  court.  When  the  cou- 
pons were  presented  for  payment,  the  plaintiff  bank  had  changed  its 
clerks  and  a  new  clerk  misread  the  word  "Corp."  for  "coupons,"  and, 
thinking  that  the  hotel  corporation's  account  marked  "Corp."  was  set 
apart  for  the  payment  of  coupons,  as  the  bank's  habit  was,  paid  them 
and  charged  them  to  that  account.  The  mistake  was  not  known  until 
some  two  weeks  afterwards,  when  the  president  of  the  plaintiff  bank, 
in  looking  over  the  hotel  corporation's  account  to  ascertain  the  amount 
to  its  credit  when  the  summons  on  suggestion  was  served  upon  him, 
discovered  it.  The  plaintiff  bank  at  once  notified  the  defendant  of  the 
mistake,  offered  to  return  the  coupons,  and  requested  repayment, 
which  after  some  months  of  correspondence  was  refused.  The  plain- 
tiff bank  was  compelled  to  pay  the  whole  $1,898.87  in  its  hands  when 
garnisheed  to  the  execution  creditor,  and  will  lose  the  $1,050  paid  the 
defendant,  unless  it  can  recover  it  from  the  defendant,  as  the  hotel 
corporation  is  insolvent. 

The  general  rule  is  that  money  paid  under  a  mistake  of  fact  may  be 
recovered ;  but  the  payment  of  a  check  or  note  by  a  bank  upon  which  it 
is  drawn  or  at  which  it  is  made  payable  imder  the  mistaken  belief  that 
the  drawer  of  the  check  or  the  maker  of  the  note  has  sufficient  funds 
to  his  credit  to  pay  the  check  or  note  seems  to  be  an  exception  to  the 
general  rule.  The  cases  do  not  seem  to  be  entirely  agreed  upon  what 
principle  this  exception  is  based,  but  the  great  if  not  the  overwhelming 
weight  of  authority  maintains  this  exception  to  the  general  rule.  Some 
place  it  upon  the  ground  that  there  is  no  privity  between  the  holder  of 
the  check  or  note  and  the  bank ;  others  upon  the  ground  that,  since  the 
bank  always  has  the  means  of  knowing  the  state  of  the  depositor's  ac- 
count by  simply  looking  at  its  own  books,  the  payment  is  not  a  pay- 
ment by  mistake  within  the  meaning  of  the  legal  rule  which  permits 
a  recovery ;  others  still  place  their  decision  upon  both  grounds. 

In  Bank  v.  Hull,  Dud.  259,  one  of  the  earliest  American  cases  that 
we  have  found,  the  Supreme  Court  of  South  Carolina  said  that :  "The 
question  was  one  to  be  decided  rather  upon  authority  than  general 
reasoning  on  tlie  subject.  No  part  of  a  commercial  community  is  more 
interested  in  commercial  usages  than  banks,  and  they  cannot  complain 
when  they  are  required  to  strictly  conform  to  them.  They  cannot  al- 
ways guard  against  fraud  and  imposition,  but  they  may  against  mis- 
takes depending  on  an  inspection  of  their  own  books  and  accounts. 
*  *  *  They  accepted  and  paid  the  check  presented  by  the  defend- 
ant for  and  on  account  of  Hepton,  the  drawer,  whose  money  they 
kept  for  his  convenience  and  accommodation.    The  privity  of  contract 


Sec.  2)  SPECIFIC  APPLICATIONS   OF  THE    DOCTRINE  393 

was  between  them  and  their  customer,  Hepton,  and  not  between  them 
and  one  who  may  have  happened  in  the  course  of  dealing  to  present  a 
check  drawn  by  Hepton."     *     *     * 

In  Manf.  Nat.  Bank  v.  Swift,  70  Md.  515,  17  Atl.  336,  14  Am.  St. 
Rep.  381,  it  was  said  that,  if  any  other  rule  prevailed,  "no  one  could 
know  when  he  could  safely  receive  payment  of  a  check."  It  is  fur- 
ther said :  "It  is  the  duty  of  a  bank  to  know  the  state  of  its  depositor's 
account,  and,  if  it  makes  a  mistake,  it  must  abide  the  consequences. 
The  presentation  of  a  check  is  a  demand  for  payment.  If  it  is  paid, 
all  the  rights  of  the  payee  have  been  satisfied,  and  he  is  not  entitled  to 
ask  any  questions.  It  would  forever  destroy  the  character  of  a  bank  in 
all  commercial  circles  if,  when  it  was  ready  and  willing  to  pay  a  check, 
it  permitted  the  holder  to  inquire  if  the  drawer  had  funds  there  to 
meet  it.  It  is  a  matter  with  which  he  had  no  concern.  In  the  absence 
of  fraud  on  the  part  of  the  holder,  tlie  payment  of  a  check  by  a  bank 
is  regarded  as  finality,  and  the  fact  that  the  drawer  had  no  funds  on 
deposit  will  not  give  the  bank  any  remedy  against  the  holder."    *    *    * 

Morse  in  his  work  on  Banking  says  without  qualification  that,  if  a 
bank  pays  or  accepts  a  check  under  the  misconception  that  it  has  funds, 
it  cannot  recover  from  the  holder,  but  it  must  look  to  the  drawer  alone 
for  redress,  except  that  under  the  clearing  house  rules  a  check  paid 
through  the  clearing  house  may  be  returned  within  a  certain  time  if  the 
funds  are  found  insufficient.    2  Morse  on  Banking,  §  455.     *     *     * 

The  coupons  which  were  paid  were  payable  to  bearer  at  the  plaintiff 
bank  and  possessed  all  the  qualities  and  incidents  of  commercial  paper. 
Arents  v.  Commonwealth,  18  Grat.  750,  766,  767,  and  cases  cited. 
Their  payment  under  the  facts  disclosed  by  the  record  would  no  more 
entitle  the  plaintiff  bank  to  recover  from  the  defendant  than  if  the 
paper  paid  had  been  the  Hotel  Corporation's  check,  bill,  or  note.  The 
same  reasoning  that  applies  in  the  one  case  is  equally  applicable  in  the 
other.  If  there  be  no  privity  in  the  one  case,  there  is  none  in  the  other, 
and,  if  the  misapprehension  as  to  the  state  of  the  maker's  account  is 
not  a  mistake  within  the  meaning  of  the  legal  rule  which  permits  a 
recovery  in  the  one  case,  it  is  equally  not  such  a  mistake  in  the  other. 

While  the  reasoning  of  the  courts  in  the  cases  quoted  from  that 
there  can  be  no  recovery  in  a  case  like  this  is  not  altogether  satisfac- 
tory, the  conclusion  reached  by  them  is  sustained  by  the  great  current 
of  authority,  and  seems  to  be  in  accord  with  commercial  usage. 

We  are  of  opinion,  therefore,  to  affirm  the  judgment  complained  of. 
Aifirmed.'^ 

•1  "Where  a  bank  receives  in  the  ordinary  course  of  business  a  check  drawn 
upon  it,  presented  by  a  bona  fide  holder,  who  is  without  notice  of  the  fact  that 
payment  thereof  has  been  stopped,  and  the  bank  pays  the  amount  of  the  check 
to  such  holder,  it  cannot  afterwards  recover  back  the  money  as  paid  by  mis- 
take, on  the  ground  that  payment  of  the  check  had  been  countermanded  by  the 
drawer."  Syllabus  in  National  Bank  of  New  Jersey  v.  Berrall  (1004)  70  N. 
J.  Law,  757,  58  Atl.  ISO,  €6  L.  R.  A.  599,  103  Am.  St.  Rep.  821,  1  Ann,  Cas.  630. 
TnuBS.QuAsi  CoNT. — 13 


194  BENEFITS  CONFERRED  BY  MISTAKE  (Ch.  2 

SPRINGS  V.  HANOVER  NAT.  BANK. 

(Supreme  Court  of  New  York,  Appellate  Division,   First  Department,  1911. 
145  App.  Div.  188,  130  N.  Y.  Supp.  87.) 

McLaughlin,  J.  Action  to  recover  $39,000  paid  by  the  plaintiffs 
to  defendant  under  an  alleged  mistake  of  fact.  At  the  conclusion  of 
the  trial  the  court  directed  a  verdict  for  the  plaintiffs,  which,  on  motion 
of  the  defendant,  he  subsequently  set  aside  and  ordered  a  new  trial. 
The  plaintiffs  appeal. 

At  the  trial  it  appeared  that  the  plaintiffs  were  engaged  in  business 
in  the  city  of  New  York ;  that  the  defendant  is  a  national  bank  located 
in  such  city;  that  the  First  National  Bank  of  Decatur  is  also  a  na- 
tional bank  located  at  Decatur,  Ala. ;  that  Knight,  Yancey  &  Co.  was 
a  firm  which,  prior  to  being  adjudicated  a  bankrupt,  carried  on  business 
in  buying  and  selling  cotton  in  the  state  of  Alabama;  that,  prior  to 
the  transaction  hereafter  referred  to,  they  had  done  business  with  the 
Bank  of  Decatur,  and  also  with  the  plaintiffs;  that  in  January,  1910, 
they  inquired  of  the  plaintiffs  upon  what  terms  they  could  handle 
cotton  shipped  to  them  at  New  York,  to  which  the  plaintiffs  replied, 
giving  terms.  Nothing  further,  however,  seems  to  have  been  done 
until  March  29,  1910,  when  they  telegraphed  the  plaintiffs  that  they 
were  consigning  cotton  to  them  for  delivery  and  asked  advice  as  to 
shipping  and  drawing  instructions.  The  plaintiffs  replied  by  telegraph 
that  they  could  ship  as  they  thought  best,  and  could  draw  for  85  per 
cent,  of  the  value  of  the  cotton,  insuring  until  it  was  warehoused.  On 
the  same  day  Knight,  Yancey  &  Co.  telegraphed  the  plaintiffs:  "Have 
shipped  you  today  600  bales  care  Independent  Stores.  Drew  $39,000," 
— and  then  drew  the  following  draft  upon  them: 

"Knight,  Yancey  &  Co.,  Cotton,  Decatur,  Ala.,  U.  S.  A. 

"March  29,  1910,  19    *     *     *     No.  4059. 

"Pay  to  the  order  of  W.  B.  Shackelford,  Cashier,  ($39,000)  thirty- 
nine  thousand  dollars,  for  value  received,  and  charge  same  to  ac- 
count of  Knight,  Yancey  &  Co. 
"To  Springs  &  Co.,  New  York,  N.  Y." 

This  draft,  on  the  same  day,  they  presented  for  discount  to.  the 
Decatur  Bank,  with  what  purported  to  be  bills  of  lading  and  certificates 
of  insurance  for  600  bales  of  cotton  attached.  The  draft  was  dis- 
counted by  the  Decatur  Bank,  and  the  amount  of  it,  less  the  usual 
rate  of  exchange,  credited  to  the  account  of  Knight,  Yancey  &  Co,  The 
Decatur  Bank  indorsed  the  draft  on  the  same  day  and  sent  it,  with 
the  papers  attached,  to  the  defendant  for  collection  and  credit,  with  a 
letter  which  gave  the  names  of  the  drawees  and  the  amount  of  the 
draft.  The  only  reference  to  the  papers  attached  was  "P/A."  The 
letter,  with  the  inclosures  as  stated  therein,  was  received  by  the  de- 
fendant on  the  31st  of  Alarch.  It  indorsed  upon  tlie  draft,  "Hanover 
National  Bank,  paid  March  31,  1910,  New  York,"  and  then  presented 


Sec.  2)  srECiFic  applications  of  the  doctrine  195 

it  to  the  plaintiffs,  who  accepted  the  same  and  gave  the  defendant  a 
check  for  the  amount  of  it,  retaining  the  draft  and  papers  attached. 
The  check  was  paid,  and  the  amount  of  it  credited  by  the  Hanover 
Bank  to  the  Decatur  Bank,  and  the  same  was  drawn  out  by  or  in  the 
ordinary  course  of  business  on  or  before  April  4th  following.  Some 
time  thereafter,  plaintiffs  ascertained  that  the  bills  of  lading  were 
forgeries.  They  then  demanded  of  the  defendant  the  repayment  of  the 
$39,000,  on  the  ground  that  the  money  had  been  paid  under  a  mistake 
of  fact.  The  demand  was  not  complied  with,  and  thereupon  this  ac- 
tion was  brought  to  recover  such  sum. 

Upon  the  foregoing  facts  I  am  clearly  of  the  opinion  that  the  plain- 
tiffs were  not  entitled  to  recover.  The  draft  was  concededly  drawn 
by  Knight,  Yancey  &  Co.  The  amount  was  correct,  and,  under  the 
previous  arrangement  with  Knight,  Yancey  &  Co.,  the  plaintiffs  ac- 
cepted and  paid  it.  It  was  not  a  payment  under  a  mistake  of  fact. 
Neither  the  Decatur  Bank  nor  the  Hanover  Bank  indorsed  or  in  any 
way  stamped  the  bills  of  lading  which  were  drawn  to  the  order  of 
Knight,  Yancey  &  Co.  and  indorsed  by  them  in  blank.  The  draft  itself 
contained  no  reference  to  the  bills  of  lading,  and  it  is  not  claimed  ei- 
ther the  Decatur  Bank  or  the  defendant  had  any  knowledge  that  the 
bills  of  lading  were  not  genuine,  oi'  that  either  bank  made  any  rep- 
resentation upon  the  subject  to  induce  the  plaintiffs  to  make  the  pay- 
ment. The  Decatur  Bank  received  the  draft  in  the  usual  course  of 
business  as  a  bank  of  discount  and  paid  the  full  amount  of  it,  less  the 
exchange,  to  Knight,  Yancey  &  Co.,  and  it  is  not  even  suggested  that 
any  act  of  it  or  the  defendant  (except  the  indorsement  of  the  draft  in 
the  usual  course  of  business)  operated  to  the  prejudice  of  the  plaintiffs 
or  prevented  them  from  making  an  earlier  discovery  of  the  forgeries. 
On  the  contrary,  it  appears  that  Knight,  Yancey  &  Co.  had  arranged 
with  the  plaintiffs  to  accept  the  draft,  and  that  they  did  accept  it  upon 
the  representation  of  Knight,  Yancey  &  Co.  that  the  cotton  mentioned 
in  the  bills  of  lading  had  been  shipped  to  their  firm  for  sale  under  the 
previous  arrangement. 

It  may  well  be  that  the  bills  of  lading  gave  some  credit  to  the  draft 
beyond  what  was  created  by  the  supposed  pecuniary  standing  of 
Knight,  Yancey  &  Co. ;  but  they  were  not  a  part  of  the  draft,  were  not 
referred  to  in  it  or  in  the  acceptance,  and,  so  far  as  the  plaintiffs  were 
concerned,  they  were  nothing  more  or  less  than  collateral  security  ac- 
companying the  draft.  It  was  for  the  plaintiffs  alone  to  determine, 
before  they  accepted  the  draft,  the  validity  and  value  of  such  security. 
There  was  no  obligation  upon  either  the  Decatur  Bank  or  the  defend- 
ant to  do  this.  The  Decatur  Bank  in  discounting  the  draft,  and  the 
defendant  in  presenting  it  for  payment,  did  not  guarantee  the  genuine- 
ness of  the  bills  of  lading  attached  to  it  as  collateral  security. 

The  case  in  principle  cannot  be  distinguished  from  Goetz  v.  Bank 
of  Kansas  City,  119  U.  S.  551,  7  Sup.  Ct.  318,  30  L.  Ed.  515;  Hoff- 
man v.  Bank  of  Milwaukee,  79  U.  S.  (12  Wall.)  181,  20  L.  Ed.  366; 


196  BENEFITS  CONFERRED  BY   MISTAKE  (Ch.  2 

Robinson  v.  Reynolds,  2  Q.  B.  196 ;  Thiedemann  v.  Goldschmidt,  1  De 
Gex  F.  &  J.  4 ;  Woods  v.  Thiedemann,  1  Hurl.  &  C.  478 ;  Leather  v. 
Simpson,  11  L.  R.  Eq.  398;  First  National  Bank  of  Detroit  v.  Burk- 
ham,  32  Mich.  328;  Alton  v.  First  National  Bank  of  Webster,  157 
Mass.  341,  32  N.  E.  228,  18  L.  R.  A.  144,  34  Am.  St.  Rep.  285 ;  Craig 
V.  Sibbett,  15  Pa.  238;  2  Daniel,  Negotiable  Instruments,  §  1734d. 

In  the  Hoffman  Case  the  bank  had  discounted  drafts  drawn  by 
parties  at  Milwaukee  on  Hoffman  &  Co.,  commission  merchants  of 
Philadelphia,  to  which  were  attached  bills  of  lading  purporting  to  rep- 
resent shipments  of  flour.  Hoffman  &  Co.  accepted  and  paid  the 
drafts.  The  bills  of  lading  turned  out  to  be  forgeries,  and  Hoffman 
&  Co.  sued  the  bank  to  recover  the  money  paid,  claiming  such  payment 
was  made  under  a  mistake  of  fact.  It  was  held  that  the  money  paid 
was  not  a  payment  by  mistake;  the  court  saying:  "Money  paid  under 
a  mistake  of  facts,  it  is  said,  may  be  recovered  back  as  having  been 
paid  without  consideration ;  but  the  decisive  answer  to  that  suggestion, 
as  applied  to  the  case  before  the  court,  is  that  money  paid,  as  in  this 
case,  by  tlie  acceptor  of  a  bill  of  exchange  to  the  payee  of  the  same,  or 
to  a  subsequent  indorsee  in  discharge  of  his  legal  obligation  as  such, 
is  not  a  payment  by  mistake,  nor  without  consideration,  unless  it  be 
shown  that  the  instrument  was 'fraudulent  on  its  inception,  or  that 
the  consideration  was  illegal,  or  that  the  facts  and  circumstances  which 
impeached  the  transaction,  as  between  the  acceptor  and  the  drawer, 
were  known  to  the  payee  or  subsequent  indorsee  at  the  time  he  be- 
came the  holder  of  the  instrument.  *  *  *  Attempt  is  made  in  ar- 
gument to  show  that  the  plaintiff's  accepted  tlie  bills  of  exchange  upon 
the  faith  and  security  of  the  bills  of  lading  attached  to  the  same  at  the 
time  the  bills  of  exchange  were  discounted  by  the  defendants.  Sup- 
pose it  was  so,  which  is  not  satisfactorily  proved,  still  it  is  not  per- 
ceived that  the  concession,  if  made,  would  benefit  the  plaintiffs,  as  the 
bills  of  exchange  are  in  the  usual  form  and  contain  no  reference  what- 
ever to  the  bills  of  lading,  and  it  is  not  pretended  that  the  defendants 
had  any  knowledge  or  intimation  that  the  bills  of  lading  were  not  gen- 
uine, nor  is  it  pretended  that  they  made  any  representation  upon  the 
subject  to  induce  plaintiffs  to  contract  any  such  liability." 

In  the  Goetz  Case,  Goetz  and  another  were  engaged  in  the  business 
of  buying  and  selling  hides  at  Milwaukee,  Wis.  One  Dubois  was  a 
dealer  in  hides  at  Kansas  City,  Mo.  Dubois  telegraphed  Goetz  asking 
for  what  they  could  sell  400  hides  and  how  much  they  would  advance 
on  a  bill  of  lading  of  the  shipment.  Goetz  replied  giving  the  market 
price  and  stating  they  would  pay  a  draft  for  two-thirds  value,  bill  of 
lading  attached.  This  was  followed  by  a  letter  in  which  Goetz  said 
they  would  sell  all  tlie  hides  Dubois  might  ship  to  the  market  at  Mil- 
waukee. On  tliis  understanding  Dubois  drew  five  drafts,  to  each  of 
which  bills  of  lading  and  invoices  were  attached.  The  bills  of  lading 
purported  to  be  issued  by  the  Chicago  &  Alton  Railroad  Company, 
stating  it  had  received  tlie  hides,  numbers  and  estimated  weight,  and 


Sec.  2)  SPECIFIC   APPLICATIONS   OF  THE    DOCTRINE  197 

marked  "to  shipper's  order,  notify  Goetz  &  Lenning,  Milwaukee,  Wis." 
The  notice  purported  to  give  the  weight  of  the  hides  and  their  price. 
The  drafts  were  made  payable  to  the  cashier  of  the  Bank  of  Kansas 
City  and  were  cashed  as  drawn,  the  bank  paying  the  full  value,  less 
rate  of  exchange,  and  the  amount  of  the  discount  was  passed  to  the 
credit  of  Dubois  and  checked  out  by  him  in  the  ordinary  course  of 
business.  The  drafts,  after  they  were  discounted,  were  sent  by  the 
bank  to  its  correspondent,  indorsed  by  it  for  collection,  and  the  in- 
voices were  indorsed  in  the  same  way.  The  bills  of  lading  were  in- 
dorsed by  Dubois.  The  signatures  to  the  bills  of  lading  proved  to  be 
forgeries,  and  Goetz  refused  to  pay  the  fifth  draft,  upon  which  suit 
was  brought ;  Goetz  counterclaiming  for  the  amount  of  the  four  previ- 
ous drafts  paid,  alleging  the  same  were  paid  by  mistake  of  fact.  It 
was  held  the  bank  was  entitled  to  recover ;  the  court  saying :  "Under 
these  circumstances,  it  is  not  surprising  that,  when  the  drafts  on  the 
merchants  in  Milwaukee  were  presented  for  discount,  the  bank  made 
no  inquiry  as  to  the  genuineness  of  the  bills  of  lading  attached  to  them. 
A  bank  in  discounting  commercial  paper  does  not  guarantee  the  genu- 
ineness of  a  document  attached  to  it  as  collateral  security.  Bills  of 
lading  attached  to  drafts  drawn  as  in  the  present  case  are  merely  se- 
curity for  the  payment  of  the  drafts.  The  indorsement  by  the  bank  on 
the  invoices  accompanying  some  of  the  bills  for  collection  created  no 
responsibility  on  the  part  of  the  bank.  It  implied  no  guarantee  that 
the  bills  of  lading  were  genuine.  It  imported  nothing  more  than  that 
the  goods  which  the  bills  of  lading  stated  had  been  shipped  were  to 
be  held  for  payment  of  the  drafts  if  the  drafts  were  not  paid  by  the 
drawees,  and  that  the  bank  transferred  them  only  for  that  purpose. 
If  the  drafts  should  be  paid,  the  drawees  were  to  take  the  goods.  To 
hold  such  indorsement  to  be  a  warranty  would  create  great  embarrass- 
ment in  the  use  of  bills  of  lading  as  collateral  to  commercial  paper 
against  which  they  are  drawn." 

It  would  make  this  opinion  too  long  to  quote  from  the  other  au- 
thorities; but  it  is  sufficient  to  say  they  are  equally  as  strong  as  the 
two  quoted  from,  that  money  paid  under  facts  similar  to  those  here 
involved  cannot  be  recovered.  But  see  Hannay  et  al.  v.  Guaranty 
Trust  Company  of  New  York,''^  187  Fed.  686,  recently  decided  by  the 
Circuit  Court  of  the  United  States  for  the  Southern  District  of  New 
York. 

The  draft  in  question,  as  we  have  already  seen,  made  no  reference 
to  the  bills  of  lading.     When  the  plaintiffs  accepted  it,  they  thereby 

92  In  Hannay  v.  Guaranty  Trust  Co.  (C.  C.  1911)  187  Fed.  687,  the  draft 
which  defendant  accepted  and  later  paid  contained  the  provision,  "Charge 
the  same  to  the  account  of  R.  S.  M.  I.  100  bales  of  cotton,"  with  what 
purported  to  be  a  bill  of  lading  for  the  cotton  attached  thereto.  The  bill 
of  lading  proving  to  be  a  forgery,  the  court,  following  (xuaraiitv  Trust  (^o. 
V.  Grotrian  (1902)  114  Fed.  433,  52  C.  C.  A.  235,  57  L.  R.  A.  689.  held  that 
the  draft  was  a  conditional  one,  and  the  acceptance  was  conditional  upon  the 
validity  of  the  bill  of  lading,  and  allowed  a  recovery  of  the  sum  paid,  ou  the 
ground  of  mistake. 


198  BENEFITS   CONFERRED   BY   MISTAKE  (Ch.  2 

became  obligated  to  pay  according  to  the  acceptance.  The  acceptance 
admitted  the  existence  of  Knight,  Yancey  &  Co.,  the  genuineness  of 
their  signatures,  as  well  as  their  capacity  and  authority  to  draw  the  in- 
strument.    Negotiable  Instruments  Law  (Consol.  Laws,  c.  38)  §  112. 

There  is  another  view  which  it  seems  to  me  prevents  plaintiffs  from 
recovering.  The  defendant,  in  presenting  the  draft  for  payment,  acted 
as  the  agent  of  the  Decatur  Bank,  which  was  a  bona  fide  holder  for 
value.  When  the  defendant  received  payment  of  the  draft,  it  had  no 
knowledge  that  the  bills  of  lading  attached  were  spurious,  or  that  the 
bills  did  not  represent  actual  cotton  delivered.  Having  received  the 
payment  and  paid  the  same  over  to  the  Decatur  Bank  before  it  had 
any  knowledge  that  the  bills  of  lading  were  spurious  freed  it  from 
liability.  Bank  of  America  v.  Waydell,  187  N.  Y.  115,  79  N.  E.  857; 
National  Park  Bank  v.  Seaboard  Bank,  114  N.  Y.  28,  20  N.  E.  632, 
11  Am.  St.  Rep.  612. 

If  the  foregoing  views  be  correct,  then  it  follows  that  the  court  did 
not  err  in  setting  aside  the  verdict  in  favor  of  the  plaintiffs  and  grant- 
ing a  new  trial,  because  on  the  facts  presented  a  verdict  should  have 
been  directed  for  the  defendant. 

The  order  appealed  from,  therefore,  is  affirmed,  with  costs  and  dis- 
bursements.   All  concur. 


SECTION  3.— MISTAKE  OF  LAW" 


HEWER  V.  BARTHOLOMEW. 

(Court  of  Queen's  Bench,  1598.     Cro.  Eliz.  614.) 
This  case  is  printed  at  page  11,  supra. 


BONNEL  V.  FOULICE. 

(Court  of  King's  Bench,  1657.    2  Sid.  4.) 
This  case  is  printed  at  page  13,  supra. 


BILBIE  v.  LUMLEY  et  al. 

(Court  of  King's  Bench,  1802.     2  East,  469.) 

This  was  an  action  for  money  had  and  received,  and  upon  other 
common  counts,  which  was  brought  by  an  underwriter  upon  a  policy 
of  insurance  in  order  to  recover  back  ilOO.  which  he  had  paid  upon  the 
policy  as  for  a  loss  by  capture  to  the  defendants  the  assured.  The 
ground  on  which  the  action  was  endeavoured  to  be  sustained  was  that 


Sec.  3)  MISTAKE  OF  LAW  199 

the  money  was  paid  under  a  mistake,  the  defendants  not  having  at  the 
time  of  the  insurance  effected  disclosed  to  the  underwriter  (the  pres- 
ent plaintiff)  a  material  letter  which  had  been  before  received  by 
them  relating  to  the  time  of  sailing  of  the  ship  insured.  It  was  not  now 
denied  that  the  letter  was  material  to  be  disclosed ;  but  the  defence 
rested  on  now  and  at  the  trial  was,  that  before  the  loss  on  the  policy 
was  adjusted,  and  the  money  paid  by  the  present  plaintiff,  all  the  pa- 
pers had  been  laid  before  the  underwriters,  and  amongst  others  the  let- 
ter in  question : .  and  therefore  it  was  contended  at  the  trial  before 
Rook,  J.,  at  York,  that  the  money  having  been  paid  with  full  knowl- 
edge, or  with  full  means  of  knowledge  of  all  the  circumstances,  could 
not  now  be  recovered  back  again.  On  the  other  hand,  it  was  insisted 
that  it  was  sufficient  to  sustain  the  action  that  the  money  had  been 
paid  under  a  mistake  of  the  law;  the  plaintiff  not  being  apprized  at 
the  time  of  the  payment  that  the  concealment  of  the  particular  circum- 
stance disclosed  in  the  letter  kept  back  was  a  defence  to  any  action 
which  might  have  been  brought  on  the  policy:  and  the  learned  judge 
being  of  that  opinion,  the  plaintiff  obtained  a  verdict. 

A  rule  nisi  was  granted  in  the  last  term  for  setting  aside  the  verdict 
and  having  a  new  trial ;  which  was  to  have  been  supported  now  by 
Park  for  the  defendants,  and  opposed  by  Wood  for  the  plaintiff.  But 
after  the  report  was  read,  and  the  fact  clearly  ascertained  that  the  ma- 
terial letter  in  question  had  been  submitted  to  the  examination  of  the 
underwriters  before  the  adjustment, 

Lord  EllEnborough,  C.  J.,  asked  the  plaintiff's  counsel  whether 
he  could  state  any  case  where  if  a  party  paid  money  to  another  volun- 
tarily with  a  full  knowledge  of  all  the  facts  of  the  case,  he  could 
recover  it  back  again  on  account  of  his  ignorance  of  the  law?  [No 
answer  being  given,  his  Lordship  continued:]  The  case  of  Chatfield 
V.  Paxton  is  the  only  one  I  ever  heard  of  where  Lord  Kenyon  at  nisi 
prius  intimated  something  of  that  sort.  Pjut  when  it  was  afterwards 
brought  before  this  Court  on  a  motion  for  a  new  trial,  there  were  some 
other  circumstances  of  fact  relied  on ;  and  it  was  so  doubtful  at  last 
on  what  precise  ground  the  case  turned  that  it  was  not  reported.  Ev- 
ery man  must  be  taken  to  be  cognizant  of  the  law  "*  otherwise  there 

08  "His  Lordship  [Lord  Chancellor  King]  said,  That  maxim  of  law,  ignorantia 
juris  non  excusat,  was  in  re.u;ard  to  the  public,  that  ignorance  cannot  be  plead- 
ed in  excuse  of  crimes,  but  did  not  hold  in  civil  cases."  Landsdowu  v.  Lands- 
down  (1730)  Rlosely,  364. 

"Many  of  these  maxims  and  ground  principles  get  perversely  and  inaccuh 
rately  expressed  in  this  form  of  a  presumption,  as  when  the  rule  that  ignorance 
of  the  law  excuses  no  one  is  put  in  the  form  that  every  one  is  presumed  to 
know  the  law."  James  Bradley  Thayer,  in  3  Harvard  Law  Review,  141,  165 
"PresumiJtions  and  the  Law  of  Evidence." 

"There  is  no  presumption  in  this  country  that  every  person  knows  the  law; 
it  would  be  contrary  to  common  sense  and  reason  if  it  were  so."  Maule,  J., 
in  Martindale  v.  Falkner  (184G)  2  C.  B.  Til). 

See  tlie  admirable  criticism  of  the  current  phrase  that  "every  one  is  pre- 
sumed to  know  the  law"  in  Keener,  Quasi  Contracts,  S7  et  seq. 


200  BENEFITS  CONFERRED  BY   MISTAKE  (Ch.  2 

is  no  saying  to  what  extent  the  excuse  of  ignorance  might  not  be  car- 
ried. It  would  be  urged  in  almost  every  case.  In  Lowrie  v.  Bourdieu, 
Dougl.  467,  money  paid  under  a  mere  mistake  of  the  law  was  endeav- 
oured to  be  recovered  back,  and  there  BuUer,  J.,  observed  that  ignoran- 
tia  juris  non  excusat,  &c.^* 
Pkr  Curiam.    Rule  absolute. 


BRISBANE  V.  DACRES. 

(Court  of  Common  Pleas,  1813.    5  Taunt.  143.) 

This  was  an  act  of  assumpsit  for  money  had  and  received,  to  which 
the  defendant  pleaded  the  general  issue ;  and  at  the  trial  of  the  cause 
before  Mansfield,  C.  J.,  at  the  first  sittings  within  Hilary  term,  1813,  a 
verdict  was  found  for  the  defendant,  subject  to  the  opinion  of  the 
court,  on  the  following  case. 

In  the  year  1804,  J.  R.  Dacres,  Esq.,  the  defendant's  testator,  was 
appointed  commander-in-chief  of  his  Majesty's  ships  and  vessels  on 
the  Jamaica  station:  and  before,  and  at  the  time  of  the  sailing  of 
H.  M.  S.  the  Arethusa,  as  hereinafter  m,entioned,  she  was  under 
the  command  of  Admiral  Dacres,  as  such  commander-in-chief;  and 
while  she  continued  under  such  his  command,  he  in  the  month  of 
April,  1808,  ordered  the  plaintiff,  (who  was  then  captain  or  commander 
of  the  Arethusa,  then  lying  off  Jamaica,)  to  receive  on  board  $700,000 
belonging  to  government,  and  proceed  with  the  same  to  Portsmouth. 
The  plaintiff,  in  pursuance  of,  and  under  that  order,  received  the  dol- 
lars on  board,  and  sailed  to,  and  delivered  them  at,  Portsmouth.  The 
Arethusa,  previous  to  her  so  sailing,  also  received  on  board  $1,530,000 
belonging  to  private  individuals,  which  the  plaintiff  caused  to  be  de- 
livered at  the  Bank  of  England ;  for  the  use  and  benefit  of  the  persons 
to  whom  they  were  consigned,  in  conformity  to  bills  of  lading  signed 
by  him  for  such  delivery.  The  plaintiff,  on  the  third  day  of  Novem- 
ber, 1808,  received,  through  his  agent,  from  the  Bank  of  England,  for 
the  freight,  of  the  $1,530,000  belonging  to  private  individuals,  the  sum 
of  £7358.  18s.  5d.  The  plaintiff  also,  through  his  agent,  on  the  16th  day 
of  March,  1809,  received  from  his  majesty's  treasury,  for  the  freight 
of  the  dollars  belonging  to  government,  the  sum  of  £850.  net,  by  vir- 
tue of  the  following  warrant:  "George  Rex.  Our  will  and  pleasure 
is,  that  out  of  any  money  in  your  hands  that  may  be  imprested  to  you 
for  this  service,  you  do  issue  and  pay,  or  cause  to  be  issued  and  paid  to 
our  trusty  and  well-beloved  Sir  Charles  Brisbane,  or  his  assigns,  the 

8*  In  Perrott  v.  Perrott  (1811)  14  East,  423,  one  Mary  Territt,  having  power 
to  appoint  £1000.  by  deed,  executed  the  appointment,  but  subsequently  canceled 
the  deed  of  appointment  in  the  mistaken  belief  that  her  wall  already  executed 
would  accomplish  the  same  object.  Loi-d  Ellenborough,  speaking  for  the  court, 
said  (page  4o9) :  "Mrs.  Territt  mistook  either  the  contents  of  iier  will,  which 
would  be  a  mistake  in  fact,  or  its  legal  operation,  which  would  be  a  mistake 
in  law;   and  in  either  case  we  think  the  mistake  annulled  the  cancellation." 


Sec.  3)  MISTAKE   OF  LAW  ,  201 

sum  of  i850.  without  deduction  and  without  account,  which  we  are 
graciously  pleased  to  allow  him  for  freight  of  specie,  conveyed  by  him 
on  board  our  ship  Arethusa,  from  Jamaica  to  Portsmouth :  and  this 
shall  be  as  well  to  you  for  making  the  said  payment,  as  to  the  commis- 
sioners for  auditing  our  public  accounts,  as  all  others  concerned  in  pass- 
ing your  said  accounts,  for  allowing  the  same  thereupon,  a  sufficient 
warrant.  Given  at  St.  James's,  November  15,  1808.  By  his  majesty's 
command,  W.  Broderick,  Sp.  Perceval,  W.  S.  Bourne.  To  the  paymas- 
ter general  of  guards,  garrisons  and  land  forces.  Sir  C.  Brisbane 
£850.,  for  freight  on  specie  conveyed  by  him  from  Jamaica  to  Ports- 
mouth." When  an  order  is  so  given  by  an  admiral  commanding  in 
chief  to  a  captain,  the  latter  acts  under  the  command  of  the  admiral, 
and  not  under  a  separate  admiralty  order;  and  the  Arethusa  was 
despatched  on  this  service  by  Admiral  Dacres,  and  during  the  whole  of 
such  service  was  acting  under  his  orders. 

The  case  then  stated  the  usage  of  the  navy,  with  respect  to  pay- 
ment of  freight  on  the  carriage  of  bullion,  previous  to  the  year  1801, 
the  discontinuance  of  it  in  that  year,  the  correspondence  between  the 
Secretary  of  the  Admiralty  and  the  Secretary  of  the  Treasury,  which 
took  place  in  1807,  and  the  orders  of  the  Lords  of  the  Admiralty 
made  thereupon,  in  the  same  terms,  as  the  same  are  detailed  in  the 
case  of  Montague  v.  Janverin,  4  Taunt.  446.  The  case  further  stated 
that,  since  the  making  of  such  order,  the  captains  of  his  majesty's 
navy  have  constantly  received  the  allowance  therein  mentioned  for  con- 
veying public  money;  and  according  to  the  usage,  had  been  required 
to  pay,  and  had  paid,  as  well  one-third  thereof,  as  also  one-third  of 
the  freight  for  conveying  private  money,  to  the  commander  in  chief, 
under  whose  command  they  were:  and  that  in  the  present  case  the 
sum  of  £2500.  was  on  the  22d  of  November,  1808,  paid  by  the  prize 
or  navy  agent  of  the  plaintiff,  (by  whom  the  same  had  been  previously 
received,)  to  the  late  Admiral  Dacres,  on  account,  and  in  part  payment 
of  one-third  of  the  freight  of  the  money  so  conveyed  by  the  Arethusa, 
(that  is  to  say,)  the  sum  of  £2479.  12s.  9d.,  for  one-third  of  the  freight 
of  the  private  money,  and  the  sum  of  £20.  7s.  3d.,  residue  of  the  £2500. 
on  account,  and  in  part  of  one-third  of  the  freight  of  the  public  money, 
so  conveyed  by  that  ship ;  which  payment  was  made  on  the  behalf,  and 
account,  and  with  the  sanction  of  the  plaintiff,  with  knowledge  of  the 
circumstances  before  stated,  but  under  an  idea  of  a  right  in  the  ad- 
miral to  a  third  of  such  freight,  on  the  ground  of  the  beforementioned 
usage:  and  for  the  recovery  of  which  sum  of  £2500.,  the  present  ac- 
tion was  brought.  The  question  for  the  opinion  of  the  court  was, 
whether  under  the  circumstances  stated  the  plaintiff  was  entitled  to  re- 
cover: if  he  was,  the  verdict  was  to  be  entered  for  the  plaintiff,  for 
such  sum  as  the  court  should  direct:  and  if  not,  the  present  verdict  for 
the  defendant  was  to  stand. 

Cur.  adv.  vult. 


202  BENEFITS  CONFERRED  BY   MISTAKE  (Ch.  2 

On  this  day  the  Judges  of  the  Court  delivered  their  opinions  seria- 
tim. 

GiBBS,  J.,  read  the  warrant.  I  read  this  particularly,  because  it  has 
been  contended  that  the  terms  of  the  warrant  give  the  reward  to  the 
captains  exclusively.  I  do  not  know  that  it  is  necessary  for  me  to 
state  the  correspondence:  The  sum  of  it  is  this,  that  the  lords  of 
the  treasury  proposed  to  the  lords  of  the  admiralty  that  a  certain 
sum  should  be  paid  to  the  commanders  of  ships  of  war  which  should 
carry  dollars ;  the  admiralty  fell  into  this,  and  agreed  that  an  allowance 
should  be  made  to  the  commanders  of  such  ships  as  shall  carry  treas- 
ure ;  the  purpose  of  setting  out  these  letters  is,  to  show  that  the  terms 
of  them  apply  only  to  the  captains  commanding  these  ships,  without 
any  reference  to  the  admirals.  The  case  then  states,  that  the  payment 
was  made  on  the  behalf  and  account,  and  with  the  sanction  of  the 
plaintiff :  but  under  an  idea  that  he  was  bound  to  pay  it  under  the  prac- 
tice. With  respect  to  the  freight  of  private  dollars,  we  are  all  agreed ; 
and  as  Captain  Brisbane  had  no  right  to  carry  those  dollars  at  all,  and 
stipulated  for  and  received  a  freight  to  which  he  had  no  right,  and 
afterwards  in  pursuance  of  an  understanding  with  Admiral  Dacres, 
imparted  a  part  to  him^  in  manner  agreed  on:  we  are  all  of  opinion, 
that  this  carrying  of  the  dollars  was  an  illegal  transaction,  that  the 
whole  which  followed  was  tainted  with  the  same  illegality,  and  that  the 
money  paid  cannot  be  recovered  at  all,  inasmuch  as  the  captain  could 
not  lawfully  employ  the  ship  and  crew,  which  ought  to  be  employed 
in  the  service  of  his  majesty,  in  carrying  bullion  for  individuals.  I 
think  as  to  the  £20.,  he  cannot  recover  back  the  one  third  of  that. 
We  must  take  this  payment  to  have  been  made  under  a  demand  of 
right ;  and  I  think  tliat  where  a  man  demands  money  of  another 
as  a  matter  of  right,  and  that  other,  with  a  full  knowledge  of  the  facts 
upon  which  the  demand  is  founded,  has  paid  a  sum,  he  never  can 
recover  back  the  sum  he  has  so  voluntarily  paid.  It  may  be,  that  upon 
a  further  view  he  may  form  a  different  opinion  of  the  law;  and 
it  may  be  his  subsequent  opinion  may  be  the  correct  one.  If  we  were 
to  hold  otherwise,  I  think  many  inconveniences  may  arise;  there  are 
many  doubtful  questions  of  law:  when  they  arise,  the  defendant  has 
an  option,  either  to  litigate  the  question,  or  to  submit  to  the  demand, 
and  pay  the  money.  I  think,  that  by  submitting  to  the  demand,  he 
that  pays  the  money  gives  it  to  the  person  to  whom  he  pays  it,  and 
makes  it  his,  and  closes  the  transaction  between  them.  He  who  re- 
ceives it  has  a  right  to  consider  it  as  his  without  dispute:  he  spends 
it  in  confidence  tliat  it  is  his ;  and  it  would  be  the  most  mischievous 
and  unjust,  if  he  who  has  acquiesced  in  the  right  by  such  voluntary 
payment,  should  be  at  liberty,  at  any  time  within  the  statute  of  limi- 
tations, to  rip  up  the  matter,  and  recover  back  the  money.  He  who 
received  it  is  not  in  the  same  condition:  he  has  spent  it  in  the  confi- 
dence it  was  his,  and  perhaps  has  no  means  of  repayment. 

I  am  aware  cases  were  cited  at  the  bar,  in  which  were  dicta  that 


Sec,  3)  MISTAKE  OF  LAW  203 

sums  paid  under  a  mistake  of  the  law  might  be  recovered  back, 
though  paid  with  a  knowledge  of  the  facts;  but  there  are  none  of 
these  cases  which  may  not  be  supported  on  a  much  sounder  ground. 
In  the  case  of  Farmer  v.  Arundel,  .2  Bl.  Rep.  825,  De  Grey,  C.  J., 
indeed  says:  "When  money  is  paid  by  one  man  to  another  on  a 
mistake  either  of  fact,  or  of  law,  or  by  deceit,  this  action  (of  money 
had  and  received)  will  certainly  lie."  Now  the  case  did  not  call  for 
this  proposition  so  generally  expressed;^''  and  I  do  think  that 
doctrine,  laid  down  so  very  widely  and  generally,  where  it  is  not  called 
for  by  the  circumstance  of  the  case,  is  but  little  to  be  attended  to; 
at  least  it  is  not  entitled  to  the  same  weight  in  a  case  where  the  atten- 
tion of  the  Court  is  not  called  to  a  distinction,  as  it  is  in  a  case  where 
it  is  called  to  the  distinction.  Now  in  the  very  next  case  cited,  Lowry 
V.  Bourdieu,  Doug.  471,  which  was  so  early  as  21  Geo.  3,  the  distinc- 
tion is  taken.  After  the  other  Judges,  Buller,  J.,  says:  I  am  clear 
that  the  plaintiff  ought  not  to  recover,  for  there  is  no  fraud  on  the 
part  of  the  underwriters ;  and  in  a  case  where  there  is  no  mistake  of 
fact,  or  ignorance  of  fact,  the  money  cannot  be  recovered  back,  for 
the  rule  applies,  that  ignorantia  legis  non  excusat.  This  distinction 
was  thus  pointedly  stated  in  the  presence  of  Lord  Mansfield,  who 
heard  it,  and  whose  attention  must  be  called  to  it;  and  he,  at  the 
end  of  the  case,  guards  the  world  against  the  conclusion,  that  in 
no  case  can  money,  paid  on  an  illegal  transaction,  be  recovered  back; 
for  in  case  of  extortion  he  says,  it  may.  I  mention  this  to  show,  that 
although  Lord  Mansfield  spoke  immediately  after  Buller,  J,,  and  must 
have  heard  and  noticed  his  doctrine,  he  expresses  no  dissatisfaction 
with  it.  The  next  case  is  Bize  v.  Dickason,  1  T.  R.  285,  an  action 
brought  by  an  insurance-broker  to  recover  back  from  the  assignees 
of  a  bankrupt  so  much  of  a  sum  of  money  which  the  plaintiff  had 
paid  to  the  assignees  for  a  debt  due  to  the  bankrupt,  as  the  plain- 
tiff might  have  deducted  by  way  of  set-off  by  reason  of  losses  which 
had  accrued  before  the  bankruptcy  upon  policies  effected  by  the  plain- 
tiff, and  subscribed  by  the  bankrupt.'*    It  is  most  certain  tliat  the  only 

85  In  Farmer  v.  Arundel  (1771)  2  Bl.  Rep.  825,  the  court  held  that  under  the 
circumstances  of  that  case  it  was  not  inequitable  for  defendant  to  retain  the 
money;  Ue  Grey,  C.  J.,  saying:  "Admitting,  therefore,  that  tliis  money  could 
not  have  been  demanded  by  the  defendant  (which  it  Is  not  now  necessary 
to  decide),  yet  I  am  of  opinion  that  it  is  an  honest  debt,  and  tliat  the  plain- 
tiff, having  once  paid  it,  shall  not,  by  this  action,  which  is  considered  as  an 
equitable  action,  recover  it  bacli  again." 

8  6  In  Bize  v.  Dickason  (1786)  1  T.  R.  285,  it  appeared  that  plaintiff  owed  the 
bfinkrupt  at  the  time  of  his  bankruptcy  the  sum  of  £1.'>56.  Os.  3d.  There  was 
due  to  him  from  the  bankrupt  (who  was  an  underwriter)  as  losses  on  certain 
insurance  policies  Uiken  out  by  i;laiiitill  in  his  own  name  for  certain  foreign 
correspondents  the  sum  of  £G61.*9s.  lOd.  Plaintiff  paid  defendants,  the  as- 
signees of  the  bankrupt  the  amount  of  his  own  indebtedness  to  the  baiikrui)t, 
to  wit,  £1356.  Os.  3d.  The  plaintiff,  who  was  a  del  credere  agent,  paid  tlie 
amount  of  the  losses  on  the  insurance  policies  to  his  foreiern  corres])ondonts. 
He  then  notified  the  defendants  that  he  had  paid  them  the  said  sum  of  £1356. 
Os.  3d.  under  a  mistaken  idea  witliout  deducting  the  said  £661.  9s.  lOd.,  and 


204  BENEFITS   CONFERRED   BY   MISTAKE  (Ch.  2 

question  brought  under  the  consideration  of  the  Court  In  that  case  was, 
whether  the  right  of  the  broker,  who  had  a  del  credere  commission,  to 
make  the  deduction,  ranged  itself  under  the  case  of  Grove  v.  Dubois, 
1  T.  R.  112;  and  Mingay  declined  all  argument,  and  give  up  the  case. 
It  was  taken  for  granted  without  argument,  that  if  the  plaintiff  would 
have  had  a  right  to  make  the  deduction  before  payment,  he  might  re- 
cover back  the  amount  after  payment.  Lord  Mansfield  mentioned  in 
his  judgment  many  cases  where  money  paid  could  not  be  recovered 
back  although,  if  it  had  not  been  paid,  it  could  not  have  been  enforced ; 
and  he  concludes  by  saying,  that  where  money  is  paid  under  a  mis- 
take, which  there  was  no  ground  to  claim  in  conscience,  it  may  be  re- 
covered back. 

Mistake  may  be  a  mistake  of  law  or  of  fact;  but  I  cannot  think 
Lord  Mansfield  said  "mistake  of  law;"  for  Lord  Mansfield  had,  six 
years  before,  in  Lowry  v.  Bourdieu,  heard  it  said,  "money  paid  in 
ignorance  of  the  law  could  not  be  recovered  back,"  and  had  not 
dissented  from  the  doctrine;  and  BuUer,  J.,  sate  by  him,  who  had 
expressly  stated  the  distinction  six  years  before  in  Lowry  v.  Bour- 
dieu, and  would  not  have  sate  by  and  heard  the  contrary  stated  with- 
out noticing  it.  Lord  Mansfield's  dictum  is,  that  money  paid  by  mis- 
take, which  could  not  be  claimed  in  conscience,  might  be  recovered 
back.  I  have,  however,  considerable  difficulty  in  saying  that  there 
was  any  tiling  unconscientious  in  Admiral  Dacres,  in  requiring  this 
money  to  be  paid  to  him,  or  receiving  it  when  it  was  paid.  Ever 
since  the  date  of  this  correspondence,  it  had  been  the  practice  of  the 
admirals  to  receive  this;  their  right  to  it  had  never  been  questioned 
at  the  time  when  Admiral  Dacres  received  this  sum.  Chatfield  v.  Pax- 
ton,  B.  R.  39  Geo.  IH,  Mich.  term.  A  bill  had  been  paid  by  the 
plaintiff  to  the  defendant's  house  in  India,  which  was  dishonoured  in 
consequence  of  the  defendant's  having  been  guilty  of  laches  which 
they  did  not  disclose.  The  bill  was  protested  and  sent  back  to  Eng- 
land; and  the  plaintiff  was  called  on  in  England  to  pay  it,  certainly 
under  an  ignorance  of  the  circumstances  which  had  taken  place  in 
India.  In  consequence  of  this  demand  he  accepted  another  bill ; 
and  before  that  bill  was  mature,  a  correspondence  took  place,  which,  as 

brought  action  for  money  had  and  received  for  the  latter  sum.  Held  for  plain- 
tiff. The  opinion  delivered  by  Lord  Mansfield  is  as  follows :  "The  rule  had 
always  been,  that  if  a  man  has  actually  paid  what  the  law  would  not  have 
compelled  him  to  pay,  but  what  in  equity  and  conscience  he  ought,  he  cannot 
recover  it  back  again  in  an  action  for  money  had  and  received.  So  where  a 
man  has  paid  a  debt,  which  would  othenvise  have  been  barred  by  the  Statute 
of  Limitations;  or  a  debt  contracted  during  his  infancy,  which  in  justice  he 
ought  to  discharge,  though  the  law  would  not  have  compelled  the  payment,  yet 
the  money  being  paid,  it  will  not  oblige  the"  payee  to  refund  it.  But  where 
money  is  paid  under  a  mistake,  which  there  is  no  ground  to  claim  in  con- 
science, the  party  may  recover  it  back  again  by  tliis  kind  of  action." 

In  Franklin  Bank  v.  Raymond  (IS29)  3  Wend.  (N.  Y.)  69,  73,  on  similar 
facts,  it  was  held  for  the  defendant,  the  court  saying  that,  "to  retain  the  mon- 
ey paid  under  these  circumstances  cannot  be  against  conscience." 


Sec.  3)  MISTAKE   OF   LAW      '  2()o 

I  contended,  informed  the  plaintiff  of  all  the  circumstances  attending 
the  presenting  of  the  first  bill,  and  showed  that  Chatfield  need  not 
have  accepted  that  second  bill,  and  therefore  that  he  need  not  have 
paid  it ;  but  he  did  pay  it ;  and  I  for  the  defendant,  contended,  that  ei- 
ther he  ought,  relying  upon  that  defence,  not  to  have  paid  it,  or 
that  having  paid  it  he  could  not  recover  it  back.  Lord  Kenyon  at 
nisi  prius  commented,  on  the  letters :  one  said  that  the  plaintiff  was 
going  to  Bengal,  where  he  hoped  to  gain  a  more  full  knowledge  of  the 
case.  Lord  Kenyon  stated,  that  although  the  letters  might  amount  to 
evidence  of  knowledge  of  the  facts,  they  did  not  show  an  acquiescence 
in  the  loss  of  the  money ;  and  he  thought  a  payment  made  under  an  ig- 
norance of  the  law,  would  enable  the  plaintiff  to  recover  back  the  money. 
He  also  added,  that  perhaps  the  party,  though  he  knew  both  the  law 
and  the  fact,  yet,  if  he  paid  both  under  fear  of  arrest,  for  want  of 
evidence  to  maintain  his  case,  might  afterwards  recover  it.  To  that 
doctrine  I  acceded,  and  still  accede ;  but  I  moved  for  a  new  trial,  on 
the  misdirection  of  the  Judge  upon  the  first  point,  that  money  paid  un- 
der ignorance  of  the  law,  with  knowledge  of  the  facts,  might  be  recov- 
ered back;  whereas,  I  said,  if  it  had  been  paid  with  ignorance  of 
the  facts,  but  with  knowledge  of  the  law,  it  might  be  recovered.  On 
the  discussion  of  the  rule  nisi,  not  one  of  the  Court  espoused  the 
doctrine  of  Lord  Kenyon,  or  attempted  to  support  it,  but  they  recur- 
red to  the  letters,  and  found  those  passages  in  them,  from  whence  they 
inferred  that  the  plaintiff  was  ignorant  of  a  part  of  the  facts :  it  was 
a  very  complicated  case.  Lord  Kenyon,  at  that  time,  and  Ashhurst, 
J.,  put  it  wholly  on  the  ground  of  the  plaintiff's  not  having  had  a 
knowledge  of  the  facts.  They  go  on  to  say,  that  where  a  rnan  pays 
without  knowledge,  but  only  with  a  blind  suspicion  of  the  facts,  still 
he  may  recover.  Grose,  J.,  doubts  whether  the  plaintiff  was  not  ac- 
quainted with  the  facts  before  he  paid  the  bill ;  but  he  tacitly  admits 
that  if  the  plaintiff  did  know  the  facts  then  the  money  could  not  be 
recovered :  so  tliat  he  must  be  considered  as  being  clearly  of  opinion, 
that  if  it  was  paid  with  a  knowledge  of  all  the  facts,  could  not  be 
recovered  back:  and  Lawrence,  J.,  doubted,  not  whether  the  plaintiff 
had  knowledge  of  the  law,  but  of  the  facts ;  for  that  although  the  plain- 
tiff seemed  to  have  been  apprized,  before  he  paid  the  bill,  of  the  gen- 
eral outline  of  his  defence,  he  was  not  then  so  conversant  with  the  par- 
ticular facts  now  appearing,  as  to  have  been  able  to  resist  the  de- 
mand then  made  on  him,  if  an  action  had  been  brought. 

Here  then  is,  I  may  say,  the  ultimate  opinion  of  Lord  Kenyon ;  for 
he  first  directed  the  jury  it  might  be  recovered  back  if  paid  with  a 
knowledge  of  tlie  facts,  but  without  knowledge  of  the  law,  which  opin- 
ion he  wholly  afterwards  abandons.  Among  all  the  practitioners  of 
the  Court  of  King's  Bench,  where  questions  of  this  sort  very  fre- 
quently arise  on  insurance  transactions,  we  were  universally  of  this 
opinion,  that  where  the  money  was  paid  with  a  knowledge  of  the  facts, 


206  BENEFITS  CONFERRED  BY   MISTAKE  (Ch,  2 

it  could  not  be  recovered  back.  One  underwriter  chose  to  pay,  rather 
than  resist;  another  resisted  and  succeeded:  in  all  similar  cases  it 
would  be  very  easy  to  say,  "I  paid  this  without  a  knowledge  of  the 
law,  and  therefore  may  recover  it  back."  Our  only  question,  then, 
in  all  cases  was,  whether  the  facts  were  known :  this  was  the  univer- 
sal practice,  till  Bilbie  v.  Lumley,  2  East,  469,  occurred:  that  case 
was  tried  at  York,  before  Rooke,  J.,  who  ruled  dififerently.  After 
the  report  was  read.  Lord  Ellenborough  asked  Wood,  B.,  then  of 
counsel  for  the  plaintiff,  whether  he  could  find  any  case  which  would 
support  it ;  and  he  cited  none.  Lord  Ellenborough  said  he  never  heard 
of  any,  except  Chatfield  v.  Paxton,  and  that  it  was  so  doubtful  at  last 
upon  what  precise  ground  that  case  turned,  that  it  was  not  reported; 
and  the  rule  was  made  absolute  for  a  new  trial.  Now  this  was  a  direct 
decision  upon  the  point,  certainly  without  argument ;  but  the  counsel, 
whose  learning  we  all  know,  and  who  was  never  forward  to  give  up  a 
case  which  he  thought  he  could  support,  abandoned  it.  In  Herbert 
V.  Champion,  1  Camp.  134,  a  distinction  is  clearly  taken  between  an 
adjustment  on  a  policy,  and  a  payment  on  the  adjustment;  and  Lord 
Ellenborough  says,  that  if  the  money  had  been  paid,  it  cannot  be  recov- 
ered back  without  proof  of  fraud.  I  am,  therefore,  of  opinion  this 
money  cannot  be  recovered  back.  I  think  on  principle  that  money 
which  is  paid  to  a  man  who  claims  it  as  his  right,  with  a  knowledge 
of  all  the  facts,  cannot  be  recovered  back.  I  think  it  on  principle,  and 
I  think  the  weight  of  the  authorities  is  so,  and  I  think  the  dicta  that  go 
beyond  it  are  not  supported  or  called  for  by  the  facts  of  the  cases. 
Bilbie  v.  Lumley,  I  think,  is  a  decision  to  that  effect ;  and  for  these  rea- 
sons, I  am  of  opinion,  the  plaintiff  is  not  entitled  to  recover. 

ChambrE,  J.  I  concur  in  thinking  the  money  is  not  recoverable  on 
the  payment  of  the  private  freight,  whether  the  carriage  of  the  treasure 
be  considered  as  a  legal,  or  as  an  illegal  transaction.  If  illegal,  the  mon- 
ey clearly  cannot  be  recovered ;  if  it  be  legal,  the  right  to  carry  it  must 
arise  from  the  permission  of  government;  and  as  the  practice  has 
been  uniform  for  the  admiral  to  receive  his  third  part,  we  must  take 
it  that  it  is  a  part  of  the  practice,  and  that  the  whole  practice  has  had 
that  assent  of  the  government.  As  to  the  freight  for  the  carriage  of 
the  public  property,  I  think  it  stands  on  a  different  ground,  and  that  the 
action  is  maintainable.  The  plaintiff  had  a  right  to  it,  and  the  de- 
fendant in  conscience  ought  not  to  retain  it.  The  rule  is,  that  when  he 
cannot,  in  conscience,  retain  it,  he  must  refund  it,  if  there  is  noth- 
ing illegal  in  the  transaction:  the  case  is  different  where  there  is  an 
illegality.  I  do  not  think  the  case  of  Chatfield  v.  Paxton  applies  much 
in  this  view  of  the  question.  I  never  heard  of  the  several  parts  of 
that  case  till  now :  but  I  think  there  are  sufficient  authorities  to  say  this 
person  has  paid  this  money  in  his  own  wrong,  and  that  it  may  be 
recovered  back.  In  the  case  of  Bilbie  v.  Lumley,  there  was  a  letter  said 
to  have  been  concealed,  that  ought  to  have  been  disclosed :    this  letter 


Sec.  3)  MISTAKE  OF  LAW  207 

was  shown  to  the  underwriters;  and  they,  after  reading  it,  thought 
fit  to  pay  the  money.  Now  there  the  maxim  volenti  non  fit  injuria 
applies:  in  that  case  all  argument  was  prevented  by  a  question  put 
by  the  Court  to  the  counsel.  I  am  not  aware  of  any  particular  danger 
in  extending  the  law  in  cases  of  this  sort,  for  they  are  for  the  further- 
ance of  justice;  neither  do  I  see  the  application  of  the  maxim  used 
by  Duller,  J.,  in  the  case  of  Lowry  v.  Bourdieu,  and  cited  by  the  Court 
in  Bilbie  v.  Lumley,  ignorantia  juris  non  excusat,  it  applies  only  to 
cases  of  delinquency,  where  an  excuse  is  to  be  made. 

I  have  searched  far,  to  see  if  I  could  find  any  instance  of  similar  ap- 
plication of  this  m.axim.  I  have  a  very  large  collection  of  maxims,  but 
can  find  no  instance  in  which  this  has  been  so  applied.  I  cannot  see 
how  it  applies  here.  In  Lowry  v.  Bourdieu,  the  decision  turned  on  the 
transaction  being  illegal,  and  it  being  illegal,  the  maxim  applied,  in 
pari  delicto  potior  est  conditio  defendentis.  Moses  v.  Macfarlane,  1 
Bl.  219,  and  a  number  of  subsequent  cases  decide,  that  where  the 
plaintiflr  is  entitled,  ex  aequo  et  bono,  to  recover,  he  may  recover. 
In  Farmer  v.  Arundel  the  opinion  of  De  Grey  is  not  a  mere  dictum, 
it  is  part  of  the  argument,  it  is  a  main  part  of  the  argument.  He  there 
says,  where  money  is  paid  under  a  mistake  either  of  fact,  or  of  law, 
or  by  deceit,  this  action  will  certainly  lie.  It  seems  to  me  a  most  dan- 
gerous doctrine,  that  a  man  getting  possession  of  money,  to  any 
extent,  in  consequence  of  another  party's  ignorance  of  the  law,  can- 
not be  called  on  to  repay  it.  Suppose  an  administrator  pays  money  per 
capita  in  misapplication  of  the  effects  of  the  intestate,  shall  it  be  said 
that  he  cannot  recover  it  back?^^  It  is  said,  that  may  be  remedied  in 
equity :  this  is  an  equitable  action ;  and  it  would  be  of  bad  effect, 
if  it  should  not  prevail  in  like  cases.  In  the  case  of  Bize  v.  Dickason, 
Lord  Mansfield  held,  that  if  a  person  has  paid  that  which,  in  con- 
science, he  ought,  but  the  payment  of  which  could  not  be  compelled, 
it  shall  not  be  recovered  back  in  an  action  for  money  had  and  received ; 
but  that  where  a  man  has  paid  money  under  a  mistake,  which  he 
was  neither  bound  in  law,  nor  called  on  in  conscience  to  pay,  he  may 
recover  it  back. 

Now  the  case  against  the  plaintiff  is  not  so  strong  as  it  has  been 
stated.  I  do  not  find  in  the  case  that  any  demand  was  ever  made  of 
him,  or  any  question  mooted,  upon  which  he  thought  it  better  to  sub- 
mit, than  to  litigate  the  point.  No  option  ever  presented  itself  to  him, 
and  the  maxim  volenti  non  fit  injuria  does  not  apply.  It  appears  to 
me  that  the  justice  of  the  case,  with  respect  to  the  freight  of  the  publir 
treasure,  is  entirely  with  the  plaintiff.    As  to  the  insurance  cases  that 

»7  It  is  generally  held  that  there  can  be  no  recovery  of  a  legacy  paid  under 
mistake  of  law.  Rogers  v.  Iui;ham  (1876)  3  Chd.  351 ;  Phillips'  Ex'r  v.  Mo- 
Conica  (1898)  .59  Ohio  St.  1.  51  N.  E.  445,  G9  Am.  St.  Rop.  753 ;  Scott  v.  Ford 
(1904)  45  Or.  531,  78  Pac.  742,  80  Pac.  899,  68  L.  R.  A.  469. 

Contra:  Northrop's  Executors  v.  Graves  (1849)  19  Conn.  548,  50  Am.  Dea 
264. 


208  BENEFITS   CONFERRED   BY   MISTAKE  (Cll.  2 

have  been  cited,  a  great  deal  of  fabricated  law  has  been  newly  created 
within  a  few  years;  and  the  Courts  have  to  decide  on  difficult  and 
complex  cases:  but  those  doctrines  must  not  be  carried  into  the  gen- 
eral law,  but  confined  to  the  occasions  which  gave  rise  to  them.  I 
therefore  think  the  plaintiflf  may  recover  as  to  the  £20. 

Heath,  J.  There  are  two  questions  in  this  case.  As  to  the  ques- 
tion whether  a  payment,  made  under  ignorance  of  the  law  without 
ignorance  of  the  facts,  will  enable  a  man  to  recover  his  money  back 
again,  it  is  very  difficult  to  say  that  there  is  any  evidence  of  ignorance 
of  the  law  here;  an  officer  is  sent  on  a  profitable  service,  the  ad- 
mirals are  in  the  habit  of  receiving  a  proportion  of  the  officer's  recom- 
pense, and  it  is  very  likely  the  officer  should  acquiesce  in  the  demand. 
He  might  not  like  to  contest  the  point  with  his  superior  officer.  I 
think  a  payment  made  with  knowledge  that  a  request  would  be  made 
is  not  distinguishable  from  the  case  of  an  actual  demand.  Now  if 
money  be  received  without  expressing  the  use  to  which  it  is  paid, 
it  is  received  to  the  use  of  the  payer ;  but  when  it  is  expressed  to  what 
use  it  is  paid,  that  presumption  does  not  arise:  here  the  use  was 
distinctly  expressed.  Moses  v.  Macfarlane  has  properly  been  ques- 
tioned in  many  cases,  and  particularly  by  Eyre,  C.  J.,  and  in  Marriot 
V.  Hampton,  7  T.  R.  269,  in  which  the  plaintiff  sought  to  recover  back 
the  amount  of  a  debt  recovered  by  law  from  him,  whereas  he  had  paid 
it  before  but  it  was  held  that  the  action  was  not  maintainable.  That  was 
the  case  of  judicium  redditum  in  invitum:  but  this  is  a  stronger  case; 
for  the  plaintiff  is  a  judge  in  his  own  cause,  and  decides  against  him- 
self ;  and  he  cannot  be  heard  to  repeal  his  own  judgment.  Lord  El- 
don,  Chancellor,  in  7  Ves.  23,  Bromley  v.  Holland,  approves  Lord 
Kenyon's  doctrine,  and  calls  it  a  sound  principle,  that  a  payment  volun- 
tarily made  is  not  to  be  recovered  back.  The  plaintiff  ought  not  to 
recover. 

Mansfield,  C.  J.  I  think  in  this  case,  the  plaintiff  ought  not  to 
recover.  If  it  was  against  his  conscience  to  retain  this  money,  accord- 
ing to  the  doctrine  of  Lord  Kenyon,  an  action  might  be  maintained 
to  recover  it  back:  but  I  do  not  see  how  the  retaining  this  is  against 
his  conscience;  for  how  is  it  claimed?  Before  1801  the  captains  al- 
ways paid  freight  to  themselves  both  for  private  and  public  treasure, 
before  they  paid  over  the  residue  of  the  dollars.  At  that  time  it  was 
thought  proper  that  that  practice  should  be  discontinued  so  far  as  re- 
lated to  the  freight  of  the  public  treasure ;  but,  in  order  to  make  cap- 
tains more  attentive  to  their  charge,  the  treasury  and  admiralty  thought 
it  would  be  proper  to  make  them  an  allowance,  and  that  was  to  be 
paid  to  the  captain  by  a  warrant  from  the  treasury ;  but  so  it  had  be- 
fore been,  when  the  captain  deducted  it,  that  was  paid  to  the  captain, 
and  before  that  a  practice  had  prevailed,  one  knows  not  how,  but 
probably  by  some  analogy  to  the  practice  of  prize-money,  that  the 
flag-officer,  when   only  one,   should  be  entitled  to  one-third;    when 


Sec.  3)  MISTAKE   OF   LAW  209 

more  than  one  flag-officer,  they  shared  it  in  certain  proportions.  In 
the  order  which  was  made  for  letting  them  thenceforth  be  paid  by 
a  warrant,  instead  of  deducting  the  freight  themselves,  nothing  is 
said  about  any  allowance  to  be  made  to  admirals;  the  order  is  qjjite 
silent  on  the  subject  of  what  the  captain  shall  do  with  the  freight 
when  he  has  it,  but  the  officers  of  the  navy  all  thinking  that  they  were 
to  proceed  as  they  before  did,  go  on,  the  one  to  pay,  and  the  other 
to  receive  as  they  had  done  before  this  alteration,  and  the  admirals 
receive  their  share  as  before ;  the  admiral  and  captain  each  think- 
ing that  their  right  continued  as  before,  the  admiral,  that  he  has  his 
accustomed  right,  the  captain,  that  it  is  his  duty  to  pay  the  accus- 
tomed share,  the  one  pays,  and  the  other  receives  it.  This  then  be- 
ing so,  the  admiral  doing  no  more  than  all  admirals  do,  is  it  against 
his  conscience  for  him  to  retain  it?  I  find  nothing  contrary  to  sequum 
et  bonum,  to  bring  it  within  the  case  of  Moses  v.  Macfarlane,  in  his 
retaining  it.  So  far  from  its  being  contrary  to  aequum  et  bonum,  I 
think  it  would  be  most  contrary  to  aequum  et  bonum,  if  he  were  obliged 
to  repay  it  back.  For  see  how  it  is !  If  the  sum  be  large,  it  probably 
alters  the  habits  of  his  life,  he  increases  his  expenses,  he  has. spent 
it  over  and  over  again ;  perhaps  he  cannot  repay  it  at  all,  or  not  with- 
out great  distress :  is  he  then  five  years  and  eleven  months  after,  to 
be  called  on  to  repay  it."^ 

The  case  of  Farmer  v.  Arundel,  and  De  Grey's  maxim  there,  is 
cited ;  it  certainly  is  very  hard  upon  a  Judge,  if  a  rule  which  he  gen- 
erally lays  downs  is  to  be  taken  up,  and  carried  to  its  full  extent.  This 
is  sometimes  d(5ne  by  counsel,  who  have  nothing  else  to  rely  on ; 
but  great  caution  ought  to  be  used  by  the  court  in  extending  such 
maxims  to  cases  which  the  Judge  who  uttered  them  never  had  in  con- 
templation. If  such  is  the  use  to  be  made  of  them,  I  ought  to  be  very 
cautious  how  I  lay  down  general  maxims  from  this  bench.  In  the 
case  of  Bize  v,  Dickason,  the  money  ought  conscientiously  to  have  been 
repaid.  There  is  no  other  case  cited  as  an  authority  for  the  prop- 
osition. The  maxim  volenti  non  fit  injuria,  applies  most  strongly  to 
this  case.  Lowry  v.  Bourdieu  was  the  case  of  a  gaming  policy.  A 
bond  had  been  given  for  securing  the  money  lent,  which  was  the  only 
interest  intended  to  be  insured;  if  the  plaintiff  could  have  recovered 
on  the  policy,  he  might  have  recovered  the  money  twice.  The  in- 
surance was  on  goods ;  and  he  had  no  interest  whatsoever  in  those 
goods,  otherwise  than  that,  if  the  goods  arrived,  the  owner  of  them 
would  be  the  better  able  to  pay  his  debt.  The  last  case  is  Bilbie  v. 
IvUmley.     Certainly  it  was  not  argued,  but  it  is  a  most  positive  deci- 

»8  In  Skyring  v.  Greenwood  (1825)  4  Barn.  &  Cr.  281,  It  was  held  that  "mon- 
ey paid  under  mistake  of  fact  could  not  be  rec-overed  back  if  the  recipient  had 
in  the  meantime  altered  his  mode  of  livins  to  what  ho  supposed  to  be  his  in- 
come and  spent  the  money  thus  received."  But  see  Stnndish  v.  Ross  (18-19) 
3  Exch.  R.  527.     See  also  20  Harvard  Law  Rev.  212,  note. 

TUUBS.QUASI  CONT. — 14 


210  BENEFITS   CONFERRED   BY   MISTAKE  (Cll.  2 

sion ;  and  the  counsel  was  certainly  a  most  experienced  advocate,  and 
not  disposed  to  abandon  tenable  points.  My  Brother  Chambre  put 
the  case  of  an  administrator  paying  away  the  assets  in  an  undue  course 
of  administration.  I  know  not  that  he  could  recover  back  money  so 
paid:  certainly,  if  he  could,  it  could  be  only  under  the  principle  of 
sequum  et  bonum.  There  being,  therefore,  no  case  which  has  been 
argued  by  counsel,  wherein  the  distinction  has  been  taken,  and  in  which 
this  doctrine  has  been  held,  and  as  we  do  not  feel  ourselves  called  upon 
to  overrule  so  express  an  authority  as  Bilbie  v.  Lumley,  I  am  of  opin- 
ion that  the  defendant  is  entided  to  retain  this  money.  We  hear  noth- 
ing of  what  is  become  of  the  assets  in  this  case :  perhaps  they  may  be 
applied  among  the  next  of  kin,  and  dissipated;  but  what  would  be  the 
situation  of  the  parties,  if,  at  the  end  of  five  years  and  eleven  months, 
they  could  be  called  on  to  refund  in  such  a  case?  I  am,  therefore,  of 
opinion,  that  there  ought  to  be  judgment  for  the  defendant. 
Judgment  for  the  defendant."® 


SCOTT  V.  BOARD  OF  TRUSTEES  OF  TOWN  OF  NEW 

CASTLE. 

(Court  of  Appeals  of  Kentucky,  1909.     132  Ky.  616,  116  S.  W.  788,  21  L.  R.  A. 

[N.  S.]  112.) 

Settle,  C.  J.^  This  action  was  brought  by  appellant  to  recover  of 
appellees,  composing  the  board  of  trustees  of  the  town  of  New  Castle, 
$353.40  with  interest  from  June  5th,  1907,  upon  the  ground  that  the 
previous  payment  by  him  to  the  board  of  that  sum  had  been  made  by 
mistake  and  without  consideration. 

The  plaintiff  was  the  owner  of  a  saloon  in  the  town  of  New  Castle 
in  Henry  county.  In  June,  1906,  the  county  of  Henry  went  dry  and 
in  July  of  that  year  the  town  officials  refused  the  plaintiff  a  renewal  of 
his  liquor  license  on  the  ground  that  the  action  of  the  county  in  voting 
against  the  sale  of  liquor  applied  to  the  town  of  New  Castle,  although 
shortly  before  the  county  vote  on  the  subject  the  town  had  voted  in 
favor  of  the  sale  of  liquor.  Upon  the  refusal  of  the  county  officials  to 
issue  to  plaintiff  a  liquor  license  the  plaintiff  petitioned  for  and  ob- 
tained from  the  Circuit  Court  a  mandamus  compelling  the  defendant 
to  issue  to  the  plaintiff  such  a  license.  Pursuant  to  the  order  of  the 
Court  a  license  was  issued  to  the  plaintiff  he  paying  the  regular  license 

8  9  The  great  weiglit  of  American  authority  is  in  accord  with  the  ruling  of 
Gibbs,  J.,  in  the  principal  case.  A  leading  American  case  is  Clarke  v.  Dutcher 
(1824)  9  Cow.  (N.  Y.)  674,  where,  however,  the  court  linally  decided  tliat  plaiia- 
tiff's  action  was  barred  by  reason  of  the  running  of  statute  of  limitations. 
An  exhaustive  review  of  the  authorities  is  found  in  Scott  v.  Ford  (1904)  4.5  Or. 
531,  78  Pac.  742,  SO  Pac.  899,  68  L.  R.  A.  4G9. 

1  The  statement  of  facts  contained  in  the  opening  paragraphs  of  the  opin- 
ion of  Settle,  C.  J.,  has  been  condensed  and  a  portion  of  the  opinion  proper 
has  been  omitted. 


Sec.  3)  MISTAKE   OF   LAW  211 

fee  of  $500.00  which  entitled  him  to  the  privilege  of  selling  Hquor  for 
one  year.  The  defendants  promptly  appealed  from  the  judgment  of 
the  Circuit  Court  and  the  Court  of  Appeals  reversed  such  judgment 
and  decided  that  the  vote  taken  in  the  county  of  Henry  in  June,  1906, 
also  made  the  town  of  New  Castle  dry  and  put  it  out  of  defendants' 
power  to  grant  the  license  which  they  had  issued  to  plaintiff.  Plaintiff 
thereupon  closed  his  saloon,  having  operated  under  the  license  granted 
him  for  the  period  of  107  days. 

The  present  action  was  brought  to  recover  so  much  of  the  license  fee 
as  covered  the  remainder  of  the  year ;  the  plaintiff'  contending  that  such 
money  was  unearned  by  the  town  of  New  Castle  and  was  paid  by  him 
to  its  board  of  trustees  without  consideration  and  under  a  mistake  of 
law.  Appellees  filed  a  general  demurrer  to  the  petition,  which  the 
court  sustained  and  dismissed  the  action ;  hence  this  appeal. 

So  the  question  presented  by  the  appeal  is :  Can  appellant,  the  con- 
sideration having  failed,  recover  the  money  claimed,  which,  though 
paid  with  knowledge  of  the  facts,  he  nevertheless  parted  with  under  a 
patent  mistake  of  law?  When  appellees  refused  appellant  a  license  to 
continue  for  another  year  the  sale  of  spirituous  and  malt  liquors  in 
New  Castle,  there  was  ample  ground  for  an  honest  difference  of  opin- 
ion as  to  the  effect  of  the  county  election  in  favor  of  local  option  upon 
the  election  of  the  previous  year  held  in  the  town  of  New  Castle  alone, 
which  had  gone  against  local  option.  As  able  lawyers  throughout  the 
state  were  then  disagreeing  upon  the  same  question,  it  is  not  surprising 
that  appellant  and  appellees  did  so.  Appellant  in  good  faith  believed 
that,  as  the  people  of  the  town  of  New  Castle  had  in  the  previous  year 
voted  to  permit  the  sale  of  liquors  within  its  corporate  limits,  another 
vote  upon  local  option  could  not  legally  be  taken  therein  for  three 
years,  and  therefore  that  the  later  election  held  throughout  the  county 
of  Henry  and  which  resulted  against  the  sale  of  liquors  had  no  effect 
upon  the  election  in  the  town.  On  the  other  hand,  appellees  with  equal 
good  faith  took  the  opposite  view,  and  acted  upon  it  in  refusing  appel- 
lant license.  As  a  law-abiding  citizen  appellant  took  the  matter  to  the 
circuit  court  of  the  county  for  adjudication,  and  the  judgment  of  that 
court  sustained  his  view  of  the  law.  Appellees,  while  acquiescing  in 
the  judgment  to  the  extent  of  granting  appellant  license  as  it  directed, 
were  nevertheless  unwilling  to  accept  it,  so  they  prosecuted  an  appeal 
to  this  court  for  a  final  adjudication  which  resulted  in  favor  of  their 
contention.  In  the  meantime  they  had  the  right,  pending  the  appeal, 
to  supersede  the  judgment  of  the  circuit  court,  and  thereby  prevent  the 
issual  to  appellant  of  Hcense.  This  they  did  not  do ;  but,  instead,  de- 
livered him  the  license,  for  which  he  paid  in  the  honest  belief  that  the 
judgment  of  the  circuit  court  in  his  favor  would  be  affirmed  by  the 
Court  of  Appeals.  In  this  he  was  mistaken,  as  he  was  in  believing 
appellees  had  authority  to  grant  him  license,  and  as  was  the  circuit 
court  in  rendering  the  judgment  appealed  from.  The  question  at  is- 
sue was  so  involved  in  doubt  as  to  render  its  solution  practically  im- 


212  BENEFITS   CONFERRED   BY   MISTAKE  (Ch.  2 

possible  without  a  construction  from  the  highest  court  of  the  state, 
which,  if  not  satisfactory  to  those  interested,  would  at  least  be  final 
and  conclusive.  Obviously,  in  paying  appellees  the  amount  necessary 
to  entitle  him  to  the  license  demanded,  appellant  acted  under  a  mis- 
take of  law ;  indeed,  we  may  say  that  it  would  be  difificult  to  imagine  a 
payment  of  money  under  a  clearer  and  more  palpable  mistake  of  law. 
And  this  court  has  more  than  once  declared  that  where  money  is  paid 
under  a  clear  mistake  of  law  or  fact,  which  in  equity  and  good  con- 
science should  not  be  retained  by  the  party  receiving  it,  a  recovery  will 
be  allowed.  Brands,  etc.,  v.  City  of  Louisville,  111  Ky.  60,  63  S.  W. 
2,  23  Ky.  Law  Rep.  442 ;  Underwood  v.  Brockman,  4  Dana  (34  Ky.) 
318.  29  Am.  Dec.  407;  Ray  v.  Bank  (3  B.  Mon.)  (42  Ky.)  514,  39  Am. 
Dec.  479. 

The  following  admirable  statement  of  this  principle  may  be  found 
in  Northrop  v.  Graves,  19  Conn.  548,  50  Am.  Dec.  264,  quoted- with 
approval  in  City  of  Louisville  v.  Anderson,  etc.,  79  Ky.  340,  42  Am. 
Rep.  220:  "We  mean  to  distinctly  assert  that  when  money  is  paid 
by  one  under  a  mistake  of  his  rights  and  duties,  and  which  he  was 
under  no  legal  or  moral  obligation  to  pay,  and  which  the  recipient  had 
no  right  in  good  conscience  to  retain,  it  may  be  recovered  back  wheth- 
er such  mistake  be  one  of  fact  or  law ;  and  this,  we  insist,  may  be 
done  both  upon  the  principles  of  Christian  morals  and  the  common 
law."  We  are  unable  to  see  upon  what  principle  of  good  morals  or 
law  appellees  can  justify  their  retention  of  the  amount  in  controversy, 
or  legally  compel  appellant  to  lose  it.  In  the  case  of  Bruner  &  Bloom 
V.  Clay  City,  100  Ky.  567,  38  S.  W.  1062,  18  Ky.  Law  Rep.  1008,  it 
was  held  that,  where  one  was  required  to  pay  more  for  a  liquor  li- 
cense than  was  authorized  by  the  city  charter,  the  payment  was  not  a 
voluntary  one,  and  he  might  recover  from  the  city  the  amount  paid  in 
excess  of  the  charter  requirement.  In  principle  the  case  supra  does  not 
differ  from  the  case  at  bar.  In  each  case  the  amount  paid  to  the  city 
for  a  license  was  more  than  it  was  entitled  to  receive.  In  the  one  case 
the  amount  paid  was  in  excess  of  what  the  charter  allowed;  in  the 
other  the  payment  was  not  above  the  amount  fixed  by  law,  but  it  was 
in  excess  of  what  the  city  was  entitled  to  retain,  because  the  privilege 
of  selling  liquors  which  the  license  conferred  failed  by  as  much  as  the 
alleged  excess  to  cover  the  period  for  which  it  was  issued. 

We  do  not  agree  with  counsel  for  appellees  that  a  license  such  as  ap- 
pellant paid  is  a  mere  tax,  which,  when  voluntarily  paid,  cannot  be  re- 
covered. It  is  true  that  a  tax,  when  voluntarily  paid,  cannot  be  re- 
covered, though  illegally  collected.  L.  &  N.  R.  R.  Co.  v.  Common- 
wealth, 89  Ky.  531,  12^8.  W.  1064,  11  Ky.  Law  Rep.  734.  But  this 
rule  is  based  upon  considerations  of  public  policy,  and  because  the  law 
provides  ample  means  of  correcting  an  illegal  assessment  before  the 
process  of  collecting  the  tax  begins^  but  a  license  such  as  appellant 
paid  is  on  a  different  footing.  *  *  *  We  are  therefore  of  opinion 
that  the  petition  states  a  cause  of  action. 


Sec.  3)  MISTAKE   OP   LAW  213 

Wherefore  the  judgment  is  reversed  and  cause  remanded,  with  di- 
rections to  overrule  the  demurrer,  and  for  further  proceedings  con- 
sistent with  the  opinion.* 


METZGER  V.  GREINER. 

(Circuit  Court  of  Columbiana  County,  Ohio,  1906.    9  Ohio  Cir.  Ct.  R. 

[N.  S.]  364.) 

Appeal  from  common  pleas  court. 

The  controversy  in  this  action  is  between  Byron  S.  Ambler,  as  trus- 
tee of  Joseph  Koll  under  the  insolvent  laws  of  the  state,  by  his  cross- 
petition  and  the  answer  thereto  of  John  S.  McNutt,  receiver  of  Grein- 
er  &  Son,  who  will  hereafter  be  denominated  plaintiff  and  defendant. 

Joseph  Koll  had  borrowed  from  Greiner  &  Son,  who  were  bankers 
at  Salem,  Ohio,  about  $6,000.  To  secure  the  loan  Koll  deposited  a 
number  of  shares  of  the  capital  stock  of  the  Victor  Stove  Company 
a  corporation  organized  under  the  laws  of  Ohio.  Subsequently  Koll 
made  a  general  assignment  for  the  benefit  of  his  creditors  under  the 
insolvent  laws  of  Ohio,  and  plaintiff  became  trustee,  succeeding  the 
assignee  appointed  in  the  deed  of  assignment.  Difficulties  arose  in  the 
firm  of  Greiner  &  Son,  which  was  a  partnership,  and  John  S.  McNutt 
was  appointed  receiver  to  settle  up  the  affairs  of  the  partnership.  Koll 
not  having  paid  the  loan,  the  stock  deposited  with  Greiner  &  Son  as 
security  was  sold  and  the  proceeds  applied  upon  the  claim  due  the 
bank,  which  was  about  one-third  of  the  amount  then  due. 

After  the  appropriation  of  the  proceeds  of  the  sale  of  the  stock 
to  the  claim  of  Greiner  &  Son,  plaintiff  declared  a  dividend  in  favor 
of  the  creditors  of  Koll,  and  paid  the  dividend  in  favor  of  Greiner  & 
Son  upon  the  full  amount  of  the  loan  of  $6,000  to  the  defendant,  as 

2  In  Georgia  and  Soutli  Carolina  recovery  has  been  allowed  for  a  payment 
made  under  mistake  of  law,  but  not  for  one  made  under  ignorance  of  law. 
Lawrence  v.  Beaubien  (1831)  2  Bailey  (S.  C.)  623,  23  Am.  Dec.  155;  Culbreath 
V.  Culbreath  (1S4»)  7  Ga.  64,  50  Am.  Dee.  375.  In  the  latter  case  Nisbet,  J., 
explained  the  distinction  as  follows :  "There  is  a  clear  and  practical  distinc- 
tion between  ignorance  and  mistake  of  the  law.  *  *  *  Ignorance  implies 
passiveness ;  mistake  implies  action,  ignorance  does  not  pretend  to  know,  but 
mistake  assumes  to  know.  Ignorance  may  be  the  result  of  laches,  which  is 
ci-iminal ;  mistake  argues  diligence,  which  is  commendable.  Mere  ignorance 
is  no  mistake,  but  a  mistake  always  involves  ignorance,  yet  not  that  alone. 
*  *  *  The  distinction  is  a  practical  one,  in  this,  that  mere  ignorance  of 
the  law  is  not  susceptible  of  proof.  Proof  cannot  reach  the  conviction  of  the 
mind  undeveloped  in  action;  whereas  a  mistake  of  the  law  developed  in  overt 
acts,  is  capaltle  of  proof,  like  other  facts."  This  distinction  has  been  preserv- 
ed in  the  Georgia  code.  Arnold  v.  Georgia  R.  &  Banking  Co.  (1S73)  50  Ga, 
304;    Whitehurst  v.  Mason  (1013)  1-10  CJa.  148,  78  S.  E.  038. 

This  distinction  was  expressly  repudiated  in  Jacobs  v.  Mora.nge  (1871)  47 
N.  Y.  57. 

In  a  few  states  by  statute  a  recovery  is  allowed  of  money  paid  under  mutual 
mistake  of  law.  Gregory  v.  Clabrough's  Ex'rs  (1000)  120  Cal.  475,  02  Fae. 
72;  Bottego  v.  Carroll  ot  al.  (100 1)  31  ]\Iont.  122,  77  Bac.  4.30.  Also  in  North 
Dakota,  South  Dakota,  and  Oklahoma.     See  Woodward,  Quasi  Contracts,  §  30. 


214  BENEFITS   CONFERRED   BY   MISTAKE  (CIl.  2 

he  thought  under  the  law  he  was  required  to  do,  and  not  upon  the 
amount  of  the  claim  less  the  proceeds  of  the  sale  of  the  stock.  This 
Court  a!fter  the  payment  of  the  dividend  to  defendant  by  plaintiff,  in 
the  case  of  State  National  Bank  v.  Esterly,  decided  that  in  such  a  case 
the  creditor  is  only  entitled  to  a  dividend  upon  the  balance  remaining 
after  deducting  the  proceeds  of  the  collateral  taken  to  secure  the  debt ; 
and  the  case  was  affirmed  by  the  Supreme  Court  by  a  divided  court 
(69  Ohio  St.  24,  68  N.  E.  582). 

After  the  decision  in  the  Esterly  Case  by  the  Supreme  Court,  plain- 
tiff filed  his  cross-petition  in  this  case,  which  is  the  original  case  in 
which  the  receiver  was  appointed,  asking  that  defendant  be  required 
to  pay  back  to  him  the  amount  so  paid  by  m.istake,  as  the  assets  of 
Koll  were  not  sufficient  to  pay  all  his  debts.  Defendant  contests  this 
claim  of  plaintiff  and  insists  that  he  has  a  right  to  retain  the  full 
amount  received  by  him.  In  the  agreed  statement  of  facts  submitted 
to  us,  the  reason  assigned  why  plaintiff  paid  over  to  defendant  the  divi- 
dend upon  the  full  amount  of  the  claim  of  Greiner  &  Son,  and  not 
upon  the  amount  of  the  claim  after  deducting  the  proceeds  of  the  col- 
lateral, is  that  it  was  the  general  custom  in  this  state  to  do  so,  and 
that  he  understood  that  to  be  the  law,  as  established  by  decisions  in  the 
highest  courts  of  many  of  the  states,  and  by  the  lower  courts  of  this 
state,  and  that  there  was  no  decision  of  the  Supreme  Court  upon  the 
question.  In  the  case  of  Jelke  v.  Stalls,  1  Ohio  N.  P.  page  29,  it  was 
decided  by  a  very  eminent  judge  that  the  creditor  was  entitled  to  a 
dividend  upon  the  full  amount  of  his  claim,  and  this  opinion  is  sup- 
ported by  many  decisions  of  different  states,  as  well  as  of  the  federal 
and  English  courts.  Merrill  v.  National  Bank  of  Jacksonville,  173 
U.  S.  131,  19  Sup.  Ct.  360,  43  L.  Ed.  640,  and  cases  therein  cited. 

Plaintiff  was  a  lawyer  and  was  familiar  with  these  decisions,  and 
the  payment  of  the  dividend  by  defendant  was  a  pure  mistake  of  law 
with  no  mixture  of  fact.  Furthermore,  there  is  no  claim  that  any  mis- 
representation or  fraud  was  practiced  by  defendant,  and  it  could  not 
be  said  that  defendant  had  any  advantage  in  the  transaction  that 
would  require  a  court  of  equity  to  interfere  any  more  than  a  court  of 
law. 

The  rule  in  such  cases  is  well  stated  in  Eng.  &  Am.  Enc.  of  L.  (2d 
Ed.)  vol.  20,  page  816:  "It  is  one  of  the  fundamental  maxims  of  the 
common  law  that  ignorance  of  the  law  excuses  no  one.  It  is  a  maxim 
founded  not  only  on  expediency  and  policy,  but  on  necessity.  'If  ig- 
norance of  the  law  could  be  admitted  in  judicial  proceedings  as  a 
ground  of  complaint  or  of  defense,  courts  would  be  involved  and  per- 
plexed with  questions  incapable  of  any  just  solution,  and  embarrassed 
by  inquiries  almost  interminable,  until  the  administration  of  justice 
would  become  in  eft'ect  impracticable.  There  would  be  but  few  cases 
in  which  one  party  or  the  other  would  not  allege  it  as  a  ground  of  ex- 
emption; and  the  extent  of  the  legal  knowledge  of  each  individual 
suitor,  not  his  acts  or  words,  would  be  the  material  fact  on  wdiich  judg- 


Sec.  3)  MISTAKE   OF   LAW  215 

ments  would  be  founded.'  It  is  therefore  applied  most  rigidly  at  law, 
and  is  only  relaxed  in  equity  where  the  mistake  is  mixed  witli  misrepre- 
sentation or  fraud,  or  where  tlie  ignorance  of  the  complainant  has 
conferred  upon  the  defendant  a  benefit  which  he  can  not  in  good  con- 
science retain."  In  note  7  it  is  stated:  "If  one  of  the  parties  to  a  con- 
tract is  in  truth  ignorant  of  a  matter  of  law  involved  therein,  and  the 
other  party,  knowing  him  to  be  so,  takes  advantage  of  the  circum- 
stance, he  is  guilty  of  fraud  and  the  court  will  relieve." 

But  it  is  hardly  necessary  to  go  outside  of  our  own  state  for  au- 
thorities as  the  case  of  Phillips,  Executor,  v.  McConica,  Guardian,  59 
Ohio  St.  1,  51  N.  E.  445,  69  Am.  St.  Rep.  753,  is  directly  in  point  ex- 
cept it  was  an  action  at  law.  In  that  case  it  was  held  that  "money  vol- 
untarily paid  by  an  executor,  upon  distribution,  to  one  not  entitled  to 
receive  the  same,  under  a  mistake  of  his  rights  and  duties  as  executor, 
there  being  no  mistake 'of  fact,  can  not  be  recovered  back." 

That  case,  like  this,  was  between  trustees,  the  money  having  been 
paid  by  an  administrator  in  the  settlement  of  an  estate  to  a  guardian  of- 
a  minor,  which  minor  the  executor  assumed  was  a  legatee  under  the 
law,  but  which,  in  fact,  was  not  the  case.  The  minor  had  no  clarm 
upon  the  fund  whatever,  and  yet  the  court  says  in  the  opinion :  "The 
executor  had  the  right  to  obtain  the  judgment  of  the  court  as  to  the 
proper  person  to  receive  this  money,  as. was  done  in  Upson  v.  Noble, 
35  Ohio  St.  655 ;  Rev.  St.  §  6202.  But,  knowing  all  the  facts,  he  did 
not  seek  the  direction  of  the  court,  but  relying  upon  his  own  judgment, 
paid  the  money  at  his  own  peril.  If  he  intended  to  litigate  the  matter 
he  should  have  litigated  before  payment.  It  is  now  too  late,  unless 
he  can  show  he  paid  it  under  a  mistake  of  fact,  and  this  his  present 
petition  fails  to  show." 

It  is  again  contended  by  plaintiff  that  because  at  the  time  of  the 
payment  of  this  dividend  to  defendant  it  was  the  settled  law  in  Ohio 
that  the  dividend  should  be  paid  upon  the  full  amount  of  the  claim, 
the  money  should  be  ordered  paid  back.  This  claim  is  entirely  too 
broad.  At  the  time  of  payment  there  was  no  decision  of  our  Supreme 
Court  upon  the  question,  and  the  decision  of  the  Common  Pleas  Court 
of  liamilton  County  in  Jelke  v.  Stalls,  supra,  and  of  the  United  States 
Circuit  Court  of  Appeals  for  the  Sixth  Circuit  in  a  case  from  the  West- 
ern Division  of  the  Southern  District  of  Ohio,  Chemical  Nat.  Bank  v. 
Armstrong,  59  Fed.  372,  8  C.  C.  A.  155,  28  L.  R.  A.  231,  could  hardly 
settle  the  law  in  the  state. 

But  if  the  law  had  been  fully  settled  as  claimed  by  the  plaintiff 
even  by  our  Supreme  Court,  and  a  different  holding  was  afterwards 
made,  the  result  would  be  the  same.  It  might  be  important  in  a  con- 
troversy between  Ambler  and  the  creditors  of  Kojl,  but  it  would  not 
change  the  question  we  are  considering  at  all.  "Certainly  when  the 
law  of  a  state  is  changed  by  judicial  decision,  it  does  not  open  or  annul 
what  has  been  done  in  other  cases  of  a  like  kind  for  years  before, 
nndev  a  different  understanding  of  the  law.     To  permit  such  effect  of 


216  BENEFITS   CONFERRED   BY   MISTAKE  (Ch.  2 

the  subsequent'  decision  would  lead  to  the  most  mischievous  conse- 
quences." 

In  the  case  of  Lyon  v.  Richmond,  2  Johns.  Ch.  (N.  Y.)  51,  it  was 
held,  Chancellor  Kent  delivering  the  opinion,  that:  "1.  A  subsequent 
decision  of  the  court  of  errors  in  a  different  case,  giving  a  different 
exposition  of  a  point  of  law  from  the  one  declared  by  the  Supreme 
Court,  where  the  parties  to  a  suit  entered  into  an  agreement  relative 
to  such  suit,  can  have  no  retrospective  effect  so  as  to  destroy  the  oper- 
ation of  such  agreement.  The  court  does  not  relieve  parties  from  their 
acts  and  deeds  fairly  done,  on  a  full  knowledge  of  the  facts,  though 
under  a  mistake  of  law.  Every  person  is  charged,  at  his  peril,  with  a 
knowledge  of  the  law." 

This  decision  was  made  in  1816,  and  it  seems  to  have  been  generally 
followed  in  all  the  states.  Pittsburg  &  Lake  Angeline  Iron  Co.  v. 
Lake  Superior  Iron  Co.,  118  Mich.  109,  76  N:  W.  395,  and  cases  and 
authorities  there  cited. 

'     Finding  and  decree  in  favor  of  defendant,  dismissing  the  cross- 
petition  of  plaintiff  at  his  costs.' 


ERKENS  V.  NICOLIN. 

(Supreme  Court  of  Minnesota,  1SS8.     39  Minn.  461,  40  N.  W.  567.) 

Appeal  by  defendant  from  an  order  of  the  district  court  for  Scott 
county,  Edson,  J.,  presiding,  refusing  a  new  trial  by  the  court. 

Mitchell,,  J.  Action  to  recover  back  the  money  paid  by  plaintiff 
to  defendant  for  a  quitclaim  deed  of  a  piece  of  land  in  the  village  of 
Jordan.  The  facts,  as  disclosed  by  the  evidence,  are  that  defendant 
platted  into  lots  a  tract  of  land,  of  which  he  was  the  owner,  lying  be- 
tween Water  street  and  Sand  creek.  As  shown  upon  the  plat,  the 
north  and  south  lines  of  the  lots  extend  from  Water  street  to  the  creek. 
The  distance  marked  on  the  plat  gave  the  length  of  these  lines  as  80 
feet,  but  the  actual  distance  from  Water  street  to  the  creek  was  110 
feet.  One  of  these  lots,  and  the  adjoining  35  feet  of  another,  had  been 
conveyed  by  defendant,  according  to  the  plat,  to  plaintiff  or  plaintiff's 
grantor.  Subsequently  defendant  claimed  and  stated  to  plaintiff,  in 
substance,  that  the  lots  only  extended  back  80  feet,  according  to  the 
distance  indicated  on  the  plat,  and  hence  that  he  still  owned  the  strip 
of  30  feet  next  to  the  creek.  Plaintiff*  knew  that  defendant's  claim 
was  based  wholly  upon  the  theory  that  the  distance  given  on  the  plat 
would  control,  and  hence  tliat  his  claim  of  title  was  in  fact  but  expres- 
sions of  opinion  as  to  the  legal  effect  and  construction  to  be  given  to 

8  Accord:  Henderson  v.  Folkstone  Waterworks  Co.  (1885)  1  T.  L.  R.  329, 
In  which  case  Lord  Coleridge  said :  "Here  at  the  time  the  money  was  paid, 
which  was  before  Dobbs's  Case,  the  law  was  in  favor  of  the  company,  and 
there  was  no  authority  to  sliow  that  it  could  be  recovered  baclv  on  account 
of  a  judicial  decision  reversing  the  former  understanding  of  the  laiw." 


Sec.  3)  MISTAKE   OF  LAW  217 

the  plat.  So  far  as  the  evidence  shows,  defendant  made  this  claim  in 
good  faith,  and  honestly  supposed  that  his  deeds  of  the  lots  only  con- 
veyed 80  feet.  Plaintiff  took  the  matter  under  consideration  for  nearly 
a  month,  and  went  to  the  register's  office  and  examined  the  plat  for  him- 
self. He  then  obtained  from  defendant  and  wife  a  quitclaim  deed  of 
all  the  land  down  to  the  creek,  and  paid  therefor  the  money  which  he 
now  seeks  to  recover.  When  he  paid  the  money  he  knew  all  the  facts, 
and  had  the  same  means  of  knowledge  of  them  which  defendant  had. 
The  transaction  was  unaffected  by  any  fraud,  trust,  confidence,  or  the 
like.  The  parties  dealt  with  each  other  at  arm's  length.  Plaintiff  was 
not  laboring  under  any  mistake  of  facts.  He  took  the  deed,  and  paid 
his  money  under  a  mistake  of  law  as  to  his  antecedent  existing  legal 
rights  in  the  property,  supposing  that,  according  to  the  proper  legal 
construction  of  the  plat,  the  lots  were  only  80  feet  deep.  However, 
under  the  doctrine  of  Nicolin  v.  Schneiderhan,  37  Minn.  63,  33  N.  W. 
33,  since  decided  by  this  court,  it  is  now  settled  that  a  deed  of  lots 
according  to  this  plat  would  cover  all  the  land  down  to  the  creek,  un- 
der the  rule  that  distances  must  yield  to  natural  boundaries  called  for 
in  a  deed.  We  are  unable  to  see  that  this  case  differs  in  principle  from 
Perkins  v.  Trinka,  30  Minn.  241,  15  N.  W.  115,  and  Hall  v.  Wheeler, 
Z7  Minn.  522,  35  N.  W.  Z77 , 

It  is  unnecessary  to  enter  into  any  discussion  of  the  question  (left 
in  great  confusion  in  the  books)  when,  if  ever,  relief  will  be  granted  on 
the  ground  of  mistake  in  law  alone,  or  whether  there  is  any  difference 
between  mistake  of  law  and  ignorance  of  law,  or  between  ignorance 
or  mistake  as  to  a  general  rule  of  law  and  ignorance  or  mistake  of  law 
as  to  existing  individual  rights  in  the  property  which  is  the  subject 
matter  of  the  contract.  We  hold  that  money  paid  under  mistake  of 
law  cannot  be  recovered  back  where  the  transaction  is  unaffected  by 
any  fraud,  trust,  confidence,  or  the  like,  but  both  parties  acted  in  good 
faith,  knew  all  the  facts,  and  had  equal  means  of  knowing  them,  es- 
pecially where,  as  was  evidently  the  fact  in  this  case,  the  transaction 
was  intended  to  remove  or  settle  a  question  of  doubt  as  to  title.  It 
would  be  impossible  to  foresee  all  the  consequences  which  would  result 
from  allowing  parties  to  avoid  their  contracts  in  such  cases  on  the 
mere  plea  of  ignorance  or  mistake  of  law  affecting  their  rights.  It 
would  be  difficult  to  tell  what  titles  would  stand,  or  what  contracts 
would  be  binding,  if  grantors  and  grantees  were  at  liberty  to  set  up 
such  a  plea.  This  may  seem  to  work  inequitably  in  the  present  case, 
but  more  mischief  will  always  result  from  attempting  to  mould  the 
law  to  what  seems  natural  justice  in  a  particular  case  than  from  a 
steady  adherence  to  general  principles.     Order  reversed.* 

*  In  Troy,  Adm'r,  v.  Bland  (1S77)  58  Ala.  197,  the  plaintiff  being  Indebted 
to  the  defendant  tendered  payment  in  lejjal  tender  notes  which  the  defend- 
ant declined  to  accept,  save  at  a  discount  of  15  per  cent.,  which  discount  rep- 
resented the  premium  on  gold  at  that  time.  After  some  negotiations  tlie  de- 
fendant agreed  to  accept  payment  in  legal  tender  notes  at  10  per  cent,  discount. 
The  case  of  Hepburn  v.  Griswold  (l&OO)  8  Wall.  603,  19  L.  Ed.  513,  then  re- 


218  BENEFITS   CONFERRED   BY   MISTAKE  (Ch.  2 

VARNUM  V.  TOWN  OF  HIGHGATE. 
(Supreme  Court  of  Vermont,  1892.     65  Vt.  416,  26  Atl.  628.) 

Exceptions  from  Lamoille  County  Court;  Thompson,  Judge.  As- 
sumpsit. Plea,  the  general  issue.  Plaintiff,  a  county  bridge  commis- 
sioner paid  the  defendant  town  $600  for  some  old  stone  piers,  the  plain- 
tiff desiring  to  use  the  stone  in  building  a  new  county  bridge.  At  the 
time  of  the  purchase  both  parties  believed  that  the  stone  was  the  prop- 
erty of  the  defendant.  When  the  plaintiff  settled  his  account  with  the 
State  Auditor  this  item  of  $600  was  disallowed  upon  the  ground  that 
the  stone  were  the  property  of  the  county  and  not  of  the  town  of  High- 
gate,  and  should  have  been  used  in  the  rebuilding  of  the  bridge  without 
compensation  to  any  one.  Thereupon  the  plaintiff,  without  any  de- 
mand upon  the  defendant,  brought  this  suit. 

At  the  close  of  the  plaintiff's  evidence  the  defendant  moved  the 
court  for  a  verdict  in  its  favor  and  both  parties  stated  in  open  court 
that  they  did  not  desire  to  go  to  the  jury  upon  any  question. 

The  court  directed  a  verdict  for  the  plaintiff  in  the  sum  of  $600, 
with  interest  from  the  date  of  the  writ,  to  which  the  defendant  ex- 
cepted. 

Taft,  j.6  *  ♦  *  (b)  The  plaintiff  purchased  of  the  defendant 
certain  stone,  and  paid  $600  for  them.    The'defendant  had  no  right  to 

cently  decided,  had  held  that  the  Legal  Tender  Act  was  unconstitutional.  A 
later  decision  of  the  United  States  Supreme  Court  (The  Legal  Tender  Cases 
[1870]  12  Wall.  457,  20  L.  Ed.  287)  sustained  the  validity  of  the  Legal  Tender 
Act.  The  plaintiff  after  this  later  decision  brought  the  present  action  to 
recover  the  excess  over  the  amount  of  his  indelitedness  which  he  had  paid 
defendant.  The  court  denied  relief  on  the  ground  that  money  paid  pursuant 
to  a  compromise  of  a  doubtful  or  disputed  claim  cannot  be  recovered,  quoting 
(inter  alia)  Durham  v.  Wadlington  (1848)  2  Strob.  Eq.  (S.  C.)  258,  where  the 
court  decided  that  "when  a  compromise  of  a  doubtful  right  is  fairly  made  be- 
tween the  parties  whether  the  uncertainty  rests  upon  a  doubt  of  fact,  or  a 
doubt  in  point  of  law,  if  both  parties  are  in  the  same  ignorance,  the  compro- 
mise is  equally  binding,  and  cannot  be  affected  by  any  subsequent  investigation 
and  result." 

In  Hall's  Ex'r  v.  Farmers'  Banlc  of  Kentucky  (1901)  65  S.  W.  365,  23  Ky. 
Law  Rep.  1450,  the  plaintiff,  a  guarantor,  paid  the  debt  which  he  had  guar- 
anteed although  notice  of  default  had  not  been  promptly  given  as  retiuired  by 
law.  Tlie  court  denied  recovery  on  the  ground  of  compromise,  quoting  from 
the  opinion  of  Robertson,  J.,  in  Underwood  v.  Broclcman  (IS^'6)  4  Dana  (34 
Ky.)  309,  317,  29  Am.  Dec.  407,  as  follows :  "Even  when  it  may  be  evident  that 
there  was  a  mistake  as  to  the  law,  yet  if  the  question  of  law  were  doubtful, 
and  the  parties  differed  with  respect  to  what  was  the  true  rule,  and  had,  in 
consideration  of  its  uncertainty,  and  in  consequence  of  their  diverse  opinions 
respecting  it,  made  a  fair  compromise,  their  contract  should  stand.  The  doubt- 
fulness of  the  legal  right,  and  desire  to  avoid  uncertainty  of  litigation,  would 
be  a  valuable,  meritorious  and  sufficient  consideration  to  give  it  legal  and  ef- 
fectual application.  Were  this  not  so,  no  compromise  of  doubtful  rights  would 
.  ever  stand,  because  in  every  such  case  the  one  party  or  the  other  must  have 
been  mistaken  as  to  the  law  or  the  facts,  or  both." 

See  also  Monroe  Nat.  Bank  v.  CatUn  (1909)  82  Conn.  227,  73  Atl.  3. 

5  The  statement  of  facts  has  been  rewritten  and  a  portion  of  the  opinion 
discussing  a  point  of  pleading  has  been  omitted. 


Sec.  3)  MISTAKE   OF   LAW  219 

sell  them,  had  no  title  to  them  for  that  purpose,  as  they  were  part  of  a 
highway  bridge  then  being  rebuilt  under  the  provisions  of  the  statutes. 
No.  11,  Acts  1884,  and  No.  16,  Acts  1886.  After  the  plaintiff's  evi- 
dence was  closed,  the  defendant  did  not  desire  to  go  to  the  jury  on  any 
question,  thereby  admitting  as  proved  all  the  plaintiff's  testimony  tend- 
ed to  establish.  Hamblet  v.  Bliss,  55  Vt.  535 ;  O'Connor  v.  Sowles, 
57  Vt.  470;  Hawkins  v.  Insurance  Co.,  57  Vt.  591.  Under  this  rule 
it  may  be  regarded  that  it  was  established  upon  trial  that  the  contract 
of  sale  was  made  under  a  mutual  mistake  of  a  material  fact,  viz.  the 
ownership  of  the  stone,  or  the  right  of  the  plaintiff  to  sell  them.  This 
was  an  error  of  fact.  It  may  have  arisen  because  the  parties  mis- 
judged the  law,  still  it  was  no  less  an  error  of  fact.  Right  of  private 
ownership  is  matter  of  fact,  although  it  may  result  from  a  question 
of  law.  It  has  been  held  that  when  a  contract,  as  applied  to  the  sub- 
ject-matter, conveys  a  dift'erent  right,  or  effectuates  a  different  pur- 
pose, from  that  intended  by  the  parties,  although  the  language  of  the 
contract  was  intentionally  used,  the  mistake  is  treated  as  one  of  fact, 
not  of  law.  McKenzie  v.  McKenzie,  52  Vt.  271 ;  Tabor  v.  Cilley,  53 
Vt.  487.  By  the  act  of  selling  the  defendant  undertook  to  transfer  the 
property  in  the  stone  to  the  plaintiff,  but  the  latter  acquired  nothing  by 
the  sale,  for  the  town  had  nothing  to  convey.  A  contract  so  made  un- 
der a  mutual  mistake  of  fact  can  be  avoided  in  a  court  of  law.  Ketch- 
um  V.  Catlin,  21  Vt.  191 ;  Faulkner  v.  Hebard,  26  Vt.  452.  Upon  the 
ground  of  a  mutual  mistake  of  fact  in  respect  of  the  subject-matter 
of  the  contract  the  plaintiff  had  the  right  to  avoid  the  sale,  and  is  enti- 
tled to  recover  the  consideration  he  paid  for  the  stone. 

(c)  It  is  insisted  that  a  demand  was  necessary  before  suit.  When 
money  is  paid  by  mistake,  a  demand  is  sometimes  necessary,  sometimes 
not.  When  the  payor  is  not  in  fault,  and  the  payee  receives  the  money 
in  his  own  wrong,  no  demand  is  necessary,  and  none  of  the  cases  cited 
upon  this  point  so  holds.  The  plaintiff  was  not  in  fault.  When  in- 
formed by  the  selectmen  of  the  town  that  they  claimed  the  court  had 
held  that  the  stone  belonged  to  the  town,  he  journeyed  to  St.  Johns- 
bury,  to  see  one  of  the  members  of  the  court,  and  was  confirmed  in  his 
belief  of  that  fact.  The  selectmen  ought  to  have  known  they  had  no 
right  to  receive  the  money.  They  shall  not  be  permitted  to  say,  "We 
did  not  know  we  were  doing  wrong  when  we  put  our  hands  into  the 
state's  treasury,  and  took  so  much  money  and  put  it  in  our  own."  No 
demand  was  necessary.  Sharkey  v.  Mansfield,  90  N.  Y.  227,  43  Am. 
Rep.  161. 

(d)  The  legal  title  of  the  money  paid  the  defendant  was  in  the  plain- 
tiff. He  drew  it  from  the  state  treasury,  and  was  accountable  for  it 
to  the  state.  Sections  5,  6,  No.  16,  Acts  1886.  The  plaintiff  can  re- 
cover it  in  an  action  in  his  own  name  against  the  defendant. 

(e)  No  question  of  a  disputed  claim  and  a  compromise  thereof  is 
presented  by  the  evidence. 


220  BENEFITS  CONFERRED  BY  MISTAKE  (Cll.  2 

(f)  No  laches  appear  on  the  part  of  the  plaintiff.  The  suit  was 
brought  within  two  years  from  the  time  the  state  auditor  disallowed 
the  item  sought  to  be  recovered,  and  the  defendants  have  not  been  in- 
jured by  the  delay.    Judgment  affirmed.' 

6  Mistake  as  to  the  Construction  of  a  Deed. — In  Stanley  Brothers,  Lim- 
ited, V.  Corporation  of  Nuneaton  (1912)  107  L.  T.  Rep.  760,  it  appeared  that 
the  plaintiffs  had  conveyed  cerlnin  land  to  the  defendant  upon  which  land 
were  shafts  containing  a  supply  of  water,  and  that  the  defendant  purchased 
this  land  to  be  used  as  a  part  of  its  waterworks  system.  In  the  deed  of  con- 
veyance it  was  provided  that  under  certain  conditions  (which  in  this  case 
had  happened)  the  plaintiffs  uiight  purchase  water  from  the  defendants  at 
the  rate  of  2d.  per  thousand  gallons.  By  mistake  the  plaintiff  had  for  twelve 
years  past  been  paying  the  defendant  Sd.  per  thousand  gallons,  the  regular 
price  charged  by  the  defendant  The  Court  held  that  in  so  far  as  their  claim 
was  not  barred  by  the  statute  of  limitations  the  plaintiffs  might  recover  such 
excess  payments.  In  reply  to  the  suggestion  of  defendant's  counsel  that  the 
plaintiff's'  ignorance  of  their  rights  under  this  conveyance  constituted  a  mis- 
take of  law  and  not  one  of  fact,  Bailhaclie,  J.,  said :  "I  do  not  think,  whether 
I  regard  the  ignorance  in  this  as  being  ignorance  of  the  fact  that  the  convey- 
ance contained  this  particular  covenant  or  whether  I  regard  it  as  ignorance 
of  what  the  meaning  of  the  covenant  was,  that  is  such  an  ignorance  of  law  as 
prevents  me  giving  the  relief  to  tlie  claimants  if  I  think  they  are  otherwise 
entitled  to  it  and  of  ordering  the  return  of  the  moneys  overpaid." 

Mistake  of  Law  in  Courts  of  Equity.— In  Daniell  v.  Sinclair  (1S81)  6  A.  C. 
ISl,  190  (a  bill  in  equity  to  rescind  on  the  ground  of  mutual  mistalve  of  law 
certain  credits  erroneously  allowed  in  settling  a  mortgage  account)  Sir  Robert 
P.  Collier,  speaking  for  the  Court,  said:  "Undoubtedly  there  are  cases  in  the 
Courts  of  common  law  in  which  it  has  been  held  that  money  paid  under  a 
mistake  of  law  cannot  be  recovered,  and  it  has  been  further  held  that,  under 
certain  circumstances,  the  giving  credit  in  account  may  be  treated  as  so  far 
equivalent  to  payment  as  to  prevent  sums  wrongly  credited  being  made  the 
subject  of  set-off.  Skyring  v.  Greenwood  (1S25)  4  B.  &  C.  281.  But  in  Equity 
the  line  between  mistakes  in  law  and  mistakes  in  fact  has  not  been  so  clearly 
and  sharply  drawn.  In  Earl  Beauchamp  v.  Winn  (1873)  L.  R.  6  H.  L.  223, 
Lord  Chelmsford  observes:  'With  regard  to  tlie  objection,  that  the  mistake 
(if  any)  was  one  of  law,  and  that  the  rule  "ignorantia  juris  neminem  excusat," 
applies,  I  would  observe  on  the  peculiarity  of  this  case,  that  the  ignorance 
imputable  to  the  party  was  of  a  matter  of  law  arising  upon  the  doubtful  con- 
struction of  a  grant  That  is  very  different  from  the  ignorance  of  a  well 
known  rule  of  law ;  and  there  are  many  cases  to  be  found  in  which  Equity, 
upon  a  mere  mistake  of  the  law,  without  the  admixture  of  other  circumstances 
has  given  relief  to  a  party  who  has  dealt  with  his  property  under  the  in- 
fluence of  such  a  mistake.'  In  Cooper  v.  Phibbs  (1867)  L.  R.  2  H.  L.  149,  Lord 
Westbury  said:  'Private  right  of  ownership  is  a  matter  of  fact;  it  may  be 
also  the  result  of  matter  of  law;  but  if  parties  contract  under  a  mutual  mis- 
take as  to  their  relative  and  respective  rights,  tJie  result  is  tliat  that  agree- 
ment is  liable  to  be  set  aside,  as  having  proceeded  upon  a  common  mistake.' 
In  McCarthy  v.  Decaix  (1831)  2  Russ.  &  My.  614,  where  a  person  sought  to  be 
relieved  against  a  renunciation  of  a  claim  to  property,  made  under  a  mistake 
respecting  the  validity  of  a  marriage,  the  Lord  Chancellor  observes,  'What  he 
has  done  was  in  ignorance  of  law,  possibly,  of  fact;  but  in  a  case  of  this 
kind,  this  would  be  one  and  the  same  thing.'  In  Livesey  v.  Livesey  (1S27)  3 
Russ.  287,  an  executrix,  who,  under  a  mistake  in  the  construction  of  a  will, 
had  oveii^aid  an  annuitant,  was  permitted  to  deduct  the  amount  overpaid  from 
subsequent  payments." 

For  further  decisions  in  equity  as  to  the  effect  of  mistake  of  law,  see  Ames' 
Cases  on  Equity,  vol.  II,  pp.  250-296 ;    Boke's  Cases  in  Equity,  pp.  715-734. 

For  a  discussion  of  the  doctrine  of  the  Roman  law  and  the  provisions  in 
the  French  and  German  Civil  Codes  as  to  the  recovery  of  a  payment  made 
under  mistake  of  law,  see  7  Columbia  Law  Review,  476. 


Sec.  3)  MISTAKE   OF   LAW  221 


MARCOTTE  v.  ALLEN. 

(Supreme  Judicial  Court  of  Maine,  1S97.      91  Me.  75,  39  Atl.  346,  40  L,  R. 

A.  185.) 

On  exceptions  by  defendant. 

Savage,  J.  The  plaintiff  is  an  undertaker.  The  defendant  is  city 
clerk  of  the  city  of  Lewiston.  The  plaintiff  sues  in  this  action  for 
money  had  and  received  to  recover  back  fees  paid  to  the  defendant 
for  three  hundred  and  seventy-five  "burial  permits,"  issued  under  the 
provisions  of  Public  Laws  of  1891,  c.  118,  as  amended  under  the  pro- 
visions of  Public  Laws  of  1895,  c.  154.  At  the  conclusion  of  the 
plaintiff's  evidence,  the  presiding  justice  directed  a  nonsuit,  to  which 
ruling  the  plaintiff  excepted. 

By  statute,  the  fees  of  city  clerks  for  issuing  burial  permits  are  to 
be  paid  by  the  cities  and  towns,  and  it  was  admitted  that  "the  defend- 
ant was  paid  his  legal  fees  by  the  city  of  Lewiston  for  all  the  burial 
permits  mentioned  in  this  action  prior  to  March,  1896." 

Assuming,  as  we  must,  that  the  plaintiff's  evidence  was  true,  the 
case  discloses  the  following  facts :  The  plaintiff  paid  the  money  sued 
for  to  the  defendant,  as  fees  for  burial  permits  issued  by  him.  A  fee 
of  twenty-five  cents  was  paid  each  time  the  plaintiff  had  occasion  to 
require  a  permit.  The  plaintiff  did  not  know  that  the  statute  required 
the  city  to  pay  the  city  clerk  for  his  services  in  issuing  permits,  nor 
that  the  defendant  was  being  paid  by  the  city  for  the  same.  The  de- 
fendant received  and  kept  the  money,  and  did  not  inform  the  plaintiff 
that  the  city  was  bound  to  pay,  or  was  paying  his  legal  fees.  The  evi- 
dence does  not  show  that  the  defendant  demanded  pay  of  the  plaintiff' 
as  a  prerequisite  to  the  issuing  of  the  permits,  but  the  defendant's 
predecessor  in  office  asked  the  plaintiff,  to  pay  for  such  permits,  which 
he  did,  and  he  "supposed  it  was  the  same  rule,  and  paid  him  (the  de- 
fendant) right  along."  From  these  facts  it  can  hardly  be  inferred  that 
the  defendant  thought  these  payments  were  gratuities,  and  we  are 
satisfied  that  he  must  have  known  that  the  plaintiff  paid  these  fees  be- 
cause he  supposed  he  was  bound  to.  It  is  clearly  a  case  of  payments 
made  in  ignorance  of  the  law,  and  the  defendant  relies  upon  the  well- 
settled  rule  that  voluntary  payments,  made  with  full  knowledge  of  all 
the  facts,  but  under  a  mistake  or  through  ignorance  of  the  law,  cannot 
be  recovered.    Norris  v.  Blethen,  19  Me.  348. 

The  defendant  is  a  public  officer,  and  though  he  did  not  expressly 
demand  the  payment  of  these  fees  he  took  them  knowing  that  the 
plaintiff  was  acting  upon  a  mistaken  view  of  his  legal  rights.  The 
parties  did  not  stand  upon  a  level.  The  defendant  was  in  a  position 
where  the  plaintiff  was  justified  in  relying  upon  his  conduct.  A  pub- 
lic officer  must  deal  fairly  with  the  public.  Some  courts  have  sus- 
tained actions  like  this  on  tlie  ground  of  public  policy.  In  American 
Steamship  Co.  v.  Young,  89  Pa.  186,  33  Am.  Rep.  748,  the  court  said 
of  the  relations  between  a  public  officer  and  the  public :    "He  and  the 


222  BENEFITS   CONFERRED   BY   MISTAKE  (Ch.  2 

public  who  have  business  to  transact  with  him  do  not  stand  upon  an 
equal  footing.  It  is  his  special  business  to  be  conversant  with  the  law 
under  which  he  acts,  and  to  know  precisely  how  much  he  is  authorized 
to  demand  for  his  services ;  but  with  them  it  is  different.  They  have 
neither  the  time  nor  the  opportunity  of  acquiring  the  information  nec- 
essary to  enable  them  to  know  whether  he  is  claiming  too  much  or  not, 
and  as  a  general  rule,  relying  on  his  honesty  and  integrity,  they  ac- 
quiesce in  his  demands."  See  Mayor  of  Baltimore  v.  Lefferman,  4 
Gill  (Md.)  425,  45  Am.  Dec.  145,  note ;  Walker  v.  Ham,  2  N.  H.  238 ; 
Stevenson  v.  Mortimer,  Cowper,  805. 

But  without  deciding  that  this  action  is  maintainable  on  the  ground 
of  public  policy,  we  think  it  can  be  maintained  upon  another  ground. 
Whenever,  a  payment  made  in  ignorance  of  the  law,  is  induced  by  the 
fraud  or  imposition  of  the  other  party,  and  especially  if  the  parties  are 
not  upon  an  equal  footing,  an  action  to  recover  it  back  is  maintainable. 
Stover  V.  Poole,  67  Me.  217;  Silliman  v.  Wing,  7  Hill  (N.  Y.)  159; 
Bank  of  U.  S.  v.  Daniel,  12  Pet.  32,  9  L.  Ed.  989.  This  court  has  de- 
clared in  Freeman  v.  Curtis,  51  Me.  140,  81  Am.  Dec.  564,  and  in  Jor- 
dan V.  Stevens,  51  Me.  78,  81  Am.  Dec.  556,  that  when  one,  who  him- 
self knows  the  law,  and  knows  another  to  be  ignorant  of  it,  takes  ad- 
vantage of  his  ignorance,  it  may  be  regarded  as  fraud.  His  very  si- 
lence may  be  fraudulent.  Downing  v.  Dearborn,  77  Me.  457,  1  Atl. 
407.  For  a  public  officer,  whose  fees  by  law  are  to  be  paid  by  the 
city,  and  are  paid  by  the  city,  to  receive  fees  to  which  he  knows  he  is 
not  entitled,  and  which  he  knows  are  being  paid  to  him  by  a  party, 
ignorant  of  the  law,  who  would  not  pay  if  he  did  know  the  law, — and 
not  to  inform  him  that  he  was  not  bound  to  pay,  is  fraudulent,  and 
such  officer  should  restore  the  money  which  he  cannot  conscientiously 
retain.    To  hold  otherwise  would  be  a  reproach  to  the  law. 

It  is  the  opinion  of  the  court  that  the  admission  of  the  defendant  and 
the  evidence  introduced  by  the  plaintiff  brought  the  case  within  this 
rule,  and  that  the  order  directing  a  nonsuit  was  erroneous. 

Exceptions  sustained. 


CARPENTER  v.  SOUTHWORTH. 

(United   States  Circuit  Court  of  Appeals,    Second   Circuit,   1908.     165  Fed. 

428,  91  C.  C.  A.  378.) 

In  Error  to  the  District  Court  of  the  United  States  for  the  Northern 
District  of  New  York. 

NoYEs,  Circuit  Judge.  The  complaint  in  this  action  alleges,  in  sub- 
stance, that  the  Remington  Automobile  &  Motor  Company,  a  cor- 
poration, went  into  bankruptcy ;  that  a  call  was  made  by  order  of  the 
District  Court  upon  certain  unpaid  stock  subscriptions ;  that  an  ap- 
peal was  taken  from  such  order  to  this  court,  where  it  was  affirmed, 
but  without  prejudice  to  any   defenses   stockholders   might  have  in 


Sec.  3)  MISTAKE   OF   LAW  223 

plenary  actions  to  recover  their  respective  assessments  (see  In  re  Rem- 
ington Automobile,  etc.,  Co.,  153  Fed.  347,  82  C.  C.  A.  421);  that  the 
plaintiff,  who  was  a  stockholder  and  subject  to  the  call,  learned  from  a 
newspaper  of  the  decision  of  this  court  and  believed  that  it  held  him 
liable,  although  he  was  not  advised  as  to  its  terms ;  that  he  thereupon 
called  upon  the  defendant,  who  was  trustee  of  the  bankrupt  corpora- 
tion ;  that  the  defendant  did  not  show  or  tell  him  the  contents  of  the 
decision,  "but  informed  him  that  the  Ilion  stockholders  would  have  to 
pay,  and  that  his  payment  would  release  him" ;  and  that,  relying  upon 
this  statement  and  in  the  belief  that  he  had  no  further  opportunity  to 
defend  himself,  he  paid  the  amount  of  his  assessment,  $1,250.  The 
plaintiff  seeks  in  this  action  to  recover  the  money  so  paid  upon  the 
ground  of  payment  by  mistake.  The  defendant  filed  a  general  demur- 
rer, which  was  sustained  by  the  District  Court,  and,  the  plaintiff,  not 
availing  himself  of  tlie  privilege  of  amending,  the  complaint  was  dis- 
missed. 

Whether  the  mistake  which  the  plaintiff  sets  up  was  a  mistake  of 
law,  or  of  mixed  law  and  fact,  is  not  material.  While  payments  made 
under  a  mistake  of  law  are,  as  a  general  rule,  not  recoverable,  an  ex- 
ception is  made  in  the  case  of  such  payments  made  to  trustees  in  bank- 
ruptcy or  other  officers  of  courts.  As  stated  by  Lord  Justice  James  in 
Ex  parte  James,  L.  R.  9  Chancery  Appeals,  609,  614:  "With  regard 
to  the  other  point,  that  the  money  was  voluntarily  paid  to  the  trustee 
under  a  mistake  of  law,  and  not  of  fact,  I  think  that  the  principle  that 
money  paid  under  a  mistake  of  law  cannot  be  recovered  must  not  be 
pressed  too  far,  and  there  are  several  cases  in  which  the  Court  of 
Chancery  has  held  itself  not  bound  strictly  by  it.  I  am  of  opinion  that 
a  trustee  in  bankruptcy  is  an  officer  of  the  court.  He  has  inquisitorial 
powers  given  him  by  the  court,  and  the  court  regards  him  as  its  offi- 
cer, and  he  is  to  hold  money  in  his  hands  upon  trust  for  its  equitable 
distribution  among  the  creditors.  The  court,  then,  finding  that  he  has 
in  his  hands  money  which  in  equity  belongs  to  some  one  else,  ought  to 
set  an  example  to  the  world  by  paying  it  to  the  person  really  entitled 
to  it.  In  my  opinion  the  Court  of  Bankruptcy  ought  to  be  as  honest  as 
other  people."  See,  also.  Ex  parte  Simmonds,  L.  R.  16  Q.  B.  308; 
Gillig  V.  Grant,  23  App.  Div.  596,  49  N.  Y.  Supp.  78. 

These  cases  are  based  upon  the  proposition  that,  while  an  individual 
litigant  may  retain  moneys  paid  through  a  mistake  of  law,  a  court  will 
not  permit  its  officers  to  take  advantage  of  any  such  mistake  and 
keep  moneys  belonging  to  another.  The  difficulty  with  the  plaintiff's 
cause  of  action  as  stated  in  his  complaint  is,  however,  that  it  is  not 
sufficiently  alleged  that  the  money  in  the  hands  of  the  defendant  be- 
longs to  another.  It  is  not  alleged  that  the  mistake  under  which  the 
payment  was  made  was  material.  It  dpes  not  appear  that,  if  the  plain- 
tiff had  known  the  precise  terms  of  the  decision,  he  would  not  have 
made  the  payment.  It  is  not  alleged  that  the  plaintiff  had  any  defense 
to  a  plenary  action  for  the  recovery  of  the  assessment,  or  that  he  in- 


224  BENEFITS   CONFERRED   BY   MISTAKE  (Ch.  2 

tended  to  make  any  defense  if  afforded  opportunity.  The  plaintiff  in 
his  brief  says  that  "under  the  decision  of  this  court  complainant  was 
not  liable."  This  is  a  mistake.  He  was  liable,  unless  he  had  a  valid 
defense  and  chose  to  interpose  it. 

An  action  for  the  recovery  of  money  paid  by  mistake  is  equitable 
in  its  nature,  and  when  a  payment  is  made  which  the  payee  in  good 
conscience  is  entitled  to  retain  it  cannot  be  recovered.  The  principle 
is  stated  by  Lord  Mansfield  in  tlie  early  case  of  Bize  v.  Dickason,  1 
T.  R.  285 :  "The  rule  has  always  been  that  if  a.  man  has  actually  paid 
what  the  law  would  not  have  compelled  him  to  pay,  but  what  in  equity 
and  conscience  he  ought,  he  cannot  recover  it  back  as  a  debt  barred  by 
the  statute  of  limitations  or  contracted  during  infancy;  but  where  the 
money  was  paid  under  a  mistake,  which  there  was  no  ground  to  claim 
in  conscience,  the  party  may  recover  it  back." 

The  general  allegation  in  the  complaint  that  the  money  sought  to 
be  recovered  rightfully  belongs  to  the  plaintiff  merely  states  an  infer- 
ence or  conclusion  from  the  other  facts,  which  are  in  themselves  in- 
sufficient. It  does  not  help  them  out  and  show  the  materiality  of  the 
mistake.  Upon  the  complaint  as  it  stood  the  demurrer  was  properly 
sustained,  and,  as  the  plaintiff  did  not  amend,  the  judgment  dismissing 
the  complaint  was  correct,  and  must  be  affirmed. 

In  affirming  the  judgment,  however,  we  deem  it  proper  to  say  that 
it  would  seem  to  us  appropriate  for  the  District  Court  to  enter  another 
order,  upon  the  application  of  the  present  plaintiff,  directing  the  trus- 
tee to  retain  the  said  money  paid  to  him  until  the  determination  of  a 
new  action  for  the  recovery  of  the  same,  should  said  plaintiff  institute 
it  in  said  court  witliin  a  specified  time. 


COUNTY  OF  WAYNE  v.  REYNOLDS. 

(Supreme  Court  of  Michigan,  1901.     126  Mich.  231,  85  N.  W.  574,  86  Am.  St 

Rep.  541.) 

Error  to  circuit  court,  Wayne  county ;  Morse  Rohnert,  Judge. 

Action  by  the  county  of  Wayne  against  Henry  M.  Reynolds  to  re- 
cover money  wrongfully  paid  to  defendant  as  compensation  additional 
to  his  salary  as  county  clerk.  From  a  judgment  on  a  verdict  directed 
in  favor  of  defendant,  plaintiff  brings  error. 

Hooker,  J.^  The  defendant  was  the  clerk  of  the  county  of  Wayne, 
and  during  the  time  that  he  was  such  clerk  he  was  appointed  secretary 
of  a  committee  of  the  board  of  supervisors  having  in  charge  the  erec- 
tion of  a  court  house  for  the  county.  His  appointment  was  under  the 
following  resolution :  "Resolved,  that  Henry  M.  Reynolds  be,  and  he 
is  hereby,  appointed  secretary  of  the  committee  on  public  buildings 
during  the  erection  and  completion  of  the  new  Wayne  county  building, 

7  Portions  of  the  opinion  are  omitted. 


Sec.  3)  MISTAKE   OF   LAW  225 

to  the  end  of  the  fiscal  year."  About  four  months  later  tJ-ie  board 
passed  the  following  resolution :  "Resolved,  that  the  county  auditors 
be,  and  they  are  hereby,  instructed  to  pay  Henry  M.  Reynolds  the  sum 
of  $25  per  month  for  tlie  time  he  has  acted  as  secretary  of  the  com- 
mittee on  site  and  public  buildings;  and  be  it  further  resolved,  that 
the  county  auditors  be,  and  they  are  hereby,  instructed  hereafter  to 
pay  the  secretary  of  said  committee  the  sum  of  $25  per  month  during 
the  term  of  the  committee."  Other  similar  resolutions  of  later  date, 
covering  other  periods,  appear. 

Mr.  Reynolds  performed  the  services,  and  received  from  the  board 
of  auditors  of  the  county  the  sum  of  $525  for  such  services.  This  is 
an  action  brought  by  the  county  to  recover  from  the  defendant  this 
sum,  with  interest.  The  circuit  judge  directed  a  verdict  for  the  de- 
fendant, and  the  plaintiff  has  taken  a  writ  of  error,  upon  which  the 
case  is  before  us. 

There  are  two  questions :  First.  Was  he  lawfully  entitled  to  such 
compensation?  Second.  Was  the  action  of  the  board  in  making  pay- 
ment conclusive  and  final  ? 

The  following  sections  of  the  statutes  are  cited  as  bearing  upon  this 
controversy ;  *  *  *  The  statute  cited  not  only  fixed  the  compen- 
sation of  the  clerk,  but  expressly  forbids  the  payment  or  reception  of 
any  further  sum  for  the  duties  imposed  upon  him  by  law.  Rectitude 
of  intention  upon  his  part  and  that  of  the  auditors  does  not  change 
the  character  of  the  transaction,  which  is  ultra  vires. 

A  somewhat  similar  question  arose  in  the  case  of  Steamship  Co.  v. 
Young,  89  Pa.  191,  33  Am  Rep.  '748,  and  the  right  to  recover  back 
money  was  asserted  and  sustained  in  favor  of  a  private  person  against 
an  officer  who  took  illegal  fees.  The  case  of  Allegheny  Co.  v.  Grier, 
179  Pa.  639,  36  Atl.  353,  was  much  like  the  present  case.  It  was  said: 
"Public  revenues  are  but  trust  funds,  and  officers  but  trustees  for  its 
administration  for  the  people.  It  is  no  answer  to  a  suit  brought  by  a 
trustee  to  recover  private  trust  funds  that  he  had  been  a  party  to  the 
devastavit.  With  much  the  stronger  reason  is  this  doctrine  applicable 
when  the  interests  of  the  whole  people  are  involved.  It  is  obviously 
immaterial  whether  the  illegal  payment  be  through  design  or  mistake," 
In  Virginia  the  attorney  general  claimed  and  was  allowed  and  paid 
extra  compensation,  and  it  was  recovered  back  by  the  state  in  an  action 
brought  for  the  purpose.    Com.  v.  Field,  84  Va.  31,  3  S.  E.  882. 

Story  says:  "If  an  agent  pays  money  for  his  principal,  by  mistake 
or  otherwise,  which  he  ought  not  to  have  paid,  the  agent,  as  well  as  the 
principal,  may  maintain  an  action  to  recover  it  back.  If  an  agent  pay§ 
money  under  a  mistake  of  fact  for  the  principal,  the  latter  may  recover 
it  back  from  the  party  who  had  received  it ;  and,  if  it  be  paid  under  a 
mistake  of  a  legal  obligation  of  his  principal,  it  may  be  recovered 
back."  Story,  Ag.  §§  398^35.  See,  also,  Stevenson  v.  Mortimer, 
Cowp.  806.  "The  act  of  the  agent  is  not  considered  the  act  of  the 
Thurs.Quasi  Cont. — 15 


226  BENEFITS   CONFERRED   BY   MISTAKE  (Cll.  2 

principal,  except  when  it  is  within  the  limits  of  his  authority.  *  *  * 
But,  however  it  may  be  when  the  money  is  paid  by  the  supposed  debt- 
or, no  case  has  gone  so  far  as  to  decide  that  an  unauthorized  payment  by 
an  agent,  from  an  erroneous  opinion  of  the  legal  obligation  of  his  prin- 
cipal, shall  be  binding  upon  the  principal,  and  that  he  cannot  recover 
the  money  thus  unduly  paid."  U.  S.  v.  Bartlett,  Dav.  9,  Fed.  Cas.  No. 
14,532. 

We  do  not  lose  sight  of  a  substantial  difference  between  the  case  of 
money  paid  by  an  officer,  such  as  a  treasurer,  in  the  routine  of  his  of- 
fice, and  money  paid  upon  warrant  after  allowance,  by  a  board  author- 
ized to  adjudicate  upon  claims,  and  from  whose  determination  the 
law  forbids  an  appeal,  like  the  board  of  supervisors  in  other  counties, 
and  the  board  of  auditors  in  Wayne  county.  As  has  been  held  in  the 
case  of  Advertiser  &  Tribune  v.  City  of  Detroit,  43  Mich.  116,  5  N. 
W.  72,  where  such  a  board  has  once  passed  upon  a  claim  which  it  had 
authority  to  pass  upon,  it  cannot  be  reviewed,  and  money  paid  upon 
such  adjudication  cannot  be  recovered  back  in  an  action  upon  the 
ground  that  the  charge  was  excessive.  To  permit  it  would  be  to  re- 
open every  case  where  an  excessive  allowance  had  been  made  for  serv- 
ices rendered,  and  for  which  there  is  an  obligation  to  pay  something. 
We  have  found  no  case  which  precludes  such  recovery  when  a  board 
has  allowed  a  claim  which  was  wholly  fictitious  or  expressly  forbidden 
by  law,  and,  with  one  or  (possibly)  two  exceptions,  the  same  may  be 
said  of  claims  which  the  law  does  not  recognize  as  lawful  charges 
against  the  municipality. 

Our  law  prescribing  the  duty  of  boards  of  supervisors  is  taken  from 
New  York,  where  similar  duties  and  powers  are  imposed  and  granted. 
It  has  never  been  held  in  that  state  that  money  once  allowed  and  paid 
could  not  be  recovered  back  in  a  case  where  the  law  did  not  recognize 
the  claim  allowed  as  one  that  could  be  a  proper  charge  against  the 
county.  Thus,  in  the  case  of  Board  v.  Ellis,  59  N.  Y.  620,  it  was  held 
that  a  board  of  supervisors  had  no  power  to  audit  and  allow  an  ac- 
count not  legally  chargeable  to  the  county,  and  that  if  they  did,  and  it 
was  paid,  such  payment  was  not  voluntary,  and  that  an  action  lay  to 
recover  back  the  money  paid.  The  case  was  much  like  the  present 
one  in  all  of  its  features.  Folger,  J.,  said:  "Doubtless,  if  a  board  of 
supervisors  at  one  time  acts  finally  upon  a  matter  of  which  they  have 
jurisdiction,  and  as  to  which  they  have  a  lawful  right  to  act,  a  suc- 
ceeding board  may  not  undo  what  they  have  done,  to  the  detriment 
of  third  parties.  *  *  •*  A  board  of  supervisors  has  no  power  to 
audit  and  allow  accounts  not  legally  chargeable  to  their  county,  and, 
if  it  attempts  to  do  so,  it  is  an  act  in  excess  of  jurisdiction,  done  with- 
out the  power  to  make  it  valid,  and  is  null  and  void."  See,  also. 
Smith  V.  City  of  Newburgh,  77  N.  Y.  130. 

A  more  recent  case  contains  an  elaborate  discussion  of  this  subject! 
Under  a  law  which  permitted  the  issue  of  bonds  for  the  raising  of 
funds  to  build  waterworks,  but  which  forbade  their  sale  at  less  than 


Sec.  3)  MISTAKE   OF   LAW  227 

par,  a  contract  was  made  which  was  ultimately  held  to  be  within  the 
prohibition.  The  water  board  undertook  to  compromise  this  matter, 
and  the  court  held  that  it  was  outside  of  their  jurisdiction.  Mr.  Jus- 
tice Vann  said :  "The  statute  forbade  the  payment  from  the  funds  of 
the  water  board,  and  action  forbidden  by  statute  is  void.  A  void  act 
is  no  act,  and  a  void  payment  is  no  payment.  Such  a  payment  is  not 
voluntarily  made  by  the  corporation,  but  by  its  agent  in  excess  of  au- 
thority and  in  defiance  of  its  rights.  It  is  not  the  act  of  the  corpora- 
tion itself,  but  of  one  who  without  authority  assumed  to  act  for  it. 
*  *  *  It  is  a  matter  of  grave  public  concern  to  protect  municipal 
corporations  from  the  unauthorized  and  illegal  acts  of  their  agents  in 
wasting  the  funds  of  the  taxpayers.  It  is  only  with  the  utmost  diffi- 
culty that  municipal  officers  and  agents  can  be  kept  within  the  bounds 
of  their  authority  now,  but  once  let  it  go  forth  as  the  settled  law  of  the 
state  that  an  illegal  contract  can  become  the  basis  of  a  lawful  compro- 
mise entered  into  between  the  contractor  and  an  agent  guilty  of  the 
illegal  action,  and  a  new  door  will  be 'open  to  municipal  spoliation.  If 
a  paving  contract  is  let  to  the  highest  instead  of  the  lowest  bidder,  in 
violation  of  a  statute  requiring  competition,  a  compromise  with  the 
contractor,  followed  by  payment  of  a  gross  sum  equal  to  all  the  profits 
that  he  could  have  made  on  the  contract  if  executed,  should  not  enable 
him  to  keep  the  spoils  and  defy  the  public.  Sound  public  policy  will 
not  permit  the  courts  to  countenance  this  dangerous  method  of  evading 
a  statute,  for  it  will  always  be  done  under  the  claim  of  good  faith,  and 
the  fraud  beneath  will  be  hard  to  discover."  Village  of  Ft.  Edward  v. 
Fish,  156  N.  Y.  375,  50  N.  E.  973;  Ellis  v.  Board,  107  Mich.  536,  65 
N.  W.  577.«     *     *     * 

The  judgment  is  reversed,  and  a  new  trial  ordered.' 

8  The  court  here  discussed  Advertiser  &  T.  Co.  v.  Detroit  (1880)  43  Mich. 
116,  5  N.  W.  722.  and  County  Of  Wayne  v.  Randall  (18S0)  43  Mich.  137,  5  N.  W. 
75,  expressing  disapproval  of  the  former  and  overruling  the  latter  case. 

9  In  Ada  County  v.  Gess  (1895)  4  Idaho,  611,  616,  43  Pac.  71,  the  court 
said :  "Some  authorities  go  so  far  as  to  hold  that  payments  of  the  money  of 
the  public  by  its  authorized  agent  to  an  officer  on  account  of  a  mistake  of  law 
cannot  be  recovered  back.  The  doctrine  is  so  repugnant  to  every  principle  of 
justice  and  common  honesty  that  the  latter  cases  do  not,  by  their  reasoning, 
commend  themselves  to  this  court.  We  cannot  consent  to  carry  the  doctrine 
beyond  settlements  between  private  individuals.  Therefore  we  must  hold 
that  payments  made  by  the  county  commissioners  to  public  officers,  which 
are  positively  and  absolutely  forbidden  by  the  statutes  of  the  state  and  by 
the  constitution  thereof,  may  be  recovered  back.  Both  are  pul)lic  officers,  and 
it  is  the  duty  of  both  to  see  to  it  that  the  county  is  not  damaged  through 
their  malfeasance,  negligence  or  mistake." 

In  Village  of  IMorgan  Park  v.  Knopf  (1002)  199  111.  444,  65  N.  E.  322,  the 
court  denied  a  recovery  of  illegal  fees  paid  to  defendant,  a  public  officer,  from 
the  public  treasury,  saying:  "There  was  no  fraud  or  mistake  of  fact,  and  if 
there  was  any  mistake  it  was  one  of  law,  and  the  money  having  been  volun- 
tarily paid  under  such  circumstances,  no  action  would  lie  to  recover  it  back. 
This  rule,  which  is  well  settled  as  between  individuals,  has  been  extended  to 
municipal  corporations  under  similar  circumstances.  People  v.  Foster  (18!X)) 
lS3  111.  490.  23  N.  E.  615." 

The  recent  decisions  are  collected  in  a  note  in  Ann.  Cas.  1915B,  811. 


228  BENEFITS   CONFERRED   BY   MISTAKE  (Ch.  2 


HAVEN  V.  FOSTER. 

(Supreme  Judicial  Court  of  Massachusetts,  1829.    9  Piclc.  112,  19  Am. 

Dec.  353.) 

Assumpsit  for  money  had  and  received,  and  money  paid.  The  par- 
ties stated  a  case. 

On  the  19th  of  September  1819,  Andrew  Craigie,  of  Cambridge  in 
this  commonweahh,  died  there,  intestate,  seised  in  fee  simple  of  cer- 
tain land  in  the  state  of  New  York,  and  of  real  estate  of  greater  value 
in  Massachusetts,  leaving  his  niece  Elizabeth,  the  wife  of  the  plaintiff, 
and  his  three  nephews,  Andrew  Foster,  John  Foster,  and  the  defendant, 
his  heirs  at  law,  the  niece  being  the  child  of  the  intestate's  sister  Eliz- 
abeth, and  the  nephews  the  children  of  his  sister  Mary,  and  all  four 
being  children  of  the  same  father,  Bossenger  Foster. 

In  October  1819,  administration  upon  the  estate  of  Craigie  was 
granted  in  this  commonwealth  to  his  widow.  No  letters  of  administra- 
tion were  taken  out  in  New  York.^°     *     *     * 

Morton,  J."  [After  stating  some  of  the  facts:]  By  the  statute 
of  distributions  of  this  state  these  heirs,  standing  in  the  same  degree 
of  relationship  to  the  intestate,  inherited  his  estate  in  equal  propor- 
tions. But  by  the  statute  of  New  York,  which  carries  the  doctrine  of 
representation  farther  than  the  law  of  this  state,  or  indeed  than  the 
civil  or  common  law,  these  heirs  inherited  per  stirpes  and  not  per 
capita.  So  that  the  estate  in  New  York  descended,  one  half  to  the 
wife  of  the  plaintiff,  and  the  other  half  to  the  defendant  and  his 
two  brothers ;   being  one  sixth  instead  of  one  quarter  to  each. 

Of  the  provisions  and  even  existence  of  this  statute,  all  the  heirs 
were  entirely  ignorant  during  the  whole  of  the  transactions  stated  in 
the  case.  The  plaintiff  having  discovered  the  mistake,  now  seeks  by 
this  action  to  reclaim  of  the  defendant  one  third  of  the  amount  re- 
ceived by  him  on  account  of  the  sale  of  the  New  York  lands,  with 
interest  from  the  time  of  its  receipt.  And  the  question  now  submitted 
to  our  decision  is,  whether  he  is  entitled  to  a  repetition  of  the  whole 
or  any  part  of  this  amount. 

Had  the  parties  been  informed  of  their  respective  rights  under  the 
laws  of  New  York,  it  cannot  be  doubted  that  the  plaintiff  would  have 
retained  one  moiety  of  the  land  in  that  state,  or  would  have  received 
to  himself  one  half  of  the  consideration  for  which  it  was  sold.  The 
distribution  of  the  avails  of  the  sale  was  made  by  the  heirs  upon  the 
confident  though  mistaken  supposition,  that  they  were  equally  entitled 
to  them.     They  acted  in  good  faith,  upon  a  full  conviction  that  they 

10  The  four  hoirs  had  sold  their  several  interests  In  the  land  in  New  York 
to  one  Tufts  and  had  divided  tlie  purchase  money  among  themselves  in  even 
shares. 

11  Some  of  the  facts  and  a  portion  of  the  opinion,  both  dealing  with  another 
matter,  are  omitted. 


Sec.  3)  MISTAKE   OF   LAW  229 

were  equal  owners  of  the  estate.  It  turned  out,  however,  to  the  sur- 
prise of  all  of  them,  that  they  owned  the  estate  in  very  unequal  pro- 
portions, and  that  the  defendant  and  his  brothers  had  received  not 
only  the  price  of  their  own  estate,  but  also  the  price  of  a  part  of  the 
plaintiff's  estate. 

Equity  would  therefore  seem  to  require,  that  the  defendant  should 
restore  to  the  plaintiff  the  amount  received  for  the  plaintiff's  estate. 
It  was  received  by  mistake,  and  but  for  the  mistake  would  not  have 
come  to  the  defendant's  hands.  If  the  whole  estate  had  been  owned 
by  the  plaintiff,  and  the  defendant,  having  no  interest  in  it,  had  re- 
ceived the  whole  consideration,  the  equitable  right  of  repetition  would 
have  been  no  stronger;    it  might  have  been  more  manifest. 

The  suggestion  that  the  provisions  of  the  New  York  statute  are  in 
themselves  inequitable,  is  no  answer  to  this  view  of  the  case.  Wheth- 
er the  law  of  descent  in  that  state  is  more  or  less  reasonable  and  just 
than  ours,  it  is  neither  our  province  nor  desire  to  inquire.  All  statutes 
regulating  the  descent  and  distributions  of  intestate  estate  may  be  con- 
sidered as  positive,  and  in  some  degree,  arbitrary  rules.  And  when  a 
person,  by  inheritance  or  purchase,  becomes  lawfully  seised  of  any  es- 
tate without  fraud  or  fault  on  his  part,  it  would  be  as  inconsistent  with 
sound  ethics,  as  with  sound  law,  to  devest  him  of  it  because  the  rule 
of  law  by  which  he  held  it  was  deemed  unreasonable.  And  if,  by  ac- 
cident or  mistake,  another  should  get  possession,  it  is  not  easy  to  see 
upon  what  principle  he  would  be  justified  in  retaining  it. 

In  the  case  at  bar,  the  division  of  the  consideration  money  was  made 
by  the  agreement  of  all  the  parties  interested.  The  defendant  received 
the  money  with  the  plaintiff's  consent.  But  it  was  an  implied,  rather 
than  express  agreement. 

The  defendant  also  received  the  money  under  a  claim  of  right.  The 
defendant  believed  himself  to  be  legally  and  equitably  entitled  to  one 
quarter  part  of  the  proceeds  of  the  sale.  And  under  this  belief  he 
claimed  it  as  being  rightfully  due  to  him,  and  the  plaintiff,  under  the  in- 
fluence of  the  same  belief,  assented  to  the  justice  of  the  claim,  and 
agreed  to  the  equal  distribution  which  was  made. 

It  was  not  however  paid  to  the  defendant  by  way  of  compromise. 
No  controversy  existed  between  the  parties.  There  was  not  even  a 
difference  of  opinion  between  them  in  relation  to  their  respective  pur- 
parties  in  the  estate  before  it  was  sold,  or  to  the  apportionment  of  the 
avails  after  the  sale.  There  was  therefore  no  room  for  concession 
on  the  one  side  or  the  other,  and  nothing  between  them  which  could 
be  the  subject  of  compromise. 

Nor  do  the  facts  furnish  any  ground  to  presume  that  the  plaintiff 
intended  to  grant  any  thing  to  the  defendant,  or  to  yield  any  of  his 
legal  rights.  Nemo  presumitur  donare.  And  we  have  no  reason  to  be- 
lieve that  the  plaintiff  intended  to  give  away  any  part  of  his  own  prop- 
erty, or  his  wife's  inheritance. 


230  BENEFITS   CONFERRED    BY   MISTAKE  (Ch.  2 

The  mistake  in  the  distribution  of  the  consideration  money  for 
which  the  land  was  sold,  arose  from  the  mutual  ignorance  of  the  law 
of  descents  in  New  York.  Can  this  mistake  be  corrected  and  the 
plaintiff  be  restored  to  the  rights  which  he  had  under  this  statute? 

It  is  in  the  first  place  objected,  that  the  plaintiff's  ignorance  was  ow- 
ing to  his  own  negligence;  that  he  shall  not  be  allowed  to  take  ad- 
vantage of  his  own  laches;  that  what  a  man  may  learn  with  proper 
diligence,  he  shall  be  presumed  to  know ;  and  that  against  mistakes 
arising  from  negligence,  even  a  court  of  equity  will  not  relieve. 

In  all  civil  and  criminal  proceedings  every  man  is  presumed  to  know 
the  law  of  the  land,  and  whenever  it  is  a  man's  duty  to  acquaint  him- 
self with  facts,  he  shall  be  presumed  to  know  them.  But  this  doctrine 
does  not  apply  to  the  present  case.  It  was  not  the  duty  of  the  plain- 
tiff to  know  the  laws  of  New  York,  nor  does  ignorance  of  tliem  imply 
negligence.  Knowledge  cannot  be  imputed  to  the  plaintiff,  and  it  is 
expressly  agreed  that  he,  as  well  as  the  defendant,  was  entirely  ig- 
norant of  the  statute  of  New  York.  Besides,  it  was  as  much  the 
duty  of  the  defendant  as  of  the  plaintiff,  to  be  acquainted  with  the 
laws  of  New  York.  And  if  either  is  guilty  of  negligence,  both  are,  in 
this  respect,  in  pari  delicto. 

The  objection  that  the  title  to  real  estate  cannot  be  tried  in  this  form 
of  action,  cannot  avail  the  defendant;  because  it  seems' to  us  very 
clear,  that  no  title  is  or  can  be  drawn  in  question,  in  the  present  case. 

The  principal  objection  to  the  plaintiff's  recovery,  and  the  one  most 
relied  upon  by  the  defendant's  counsel,  is,  that  the  payment  to  the  de- 
fendant was  made  through  misapprehension  of  the  law,  and  therefore 
that  the  money  cannot  be  reclaimed. 

It  is  alleged,  that  to  allow  the  plaintiff  to  recover  in  the  present  ac- 
tion, would  be  to  disregard  the  common  presumption  of  a  knowledge 
of  the  law,  and  to  violate  the  wholesome  and  necessary  maxim  Ignor- 
antia  juris  quod  quisque  tenetur  scire,  neminem  excusat.  This  objec- 
tion has  been  strongly  urged  by  the  defendant's  counsel,  and  learnedly 
and  elaborately  discussed  by  the  counsel  on  both  sides.  It  is  believed 
that  all  the  authorities  applicable  to  the  point,  from  the  civil  as  well  as 
the  common  law,  have  been  brought  before  the  Court. 

Whether  money  paid  through  ignorance  of  the  law  can  be  recovered 
back,  is  a  question  much  vexed  and  involved  in  no  inconsiderable  per- 
plexity. We  do  not  court  the  investigation  of  it,  and  before  attempt- 
ing its  solution,  it  may  be  well  to  ascertain,  whether  it  is  necessary  to 
the  decision  of  the  case  before  us. 

That  a  mistake  in  fact  is  a  ground  of  repetition,  is  too  clear  and  too 
well  settled  to  require  argument  or  authority  in  its  support. 

The  misapprehension  or  ignorance  of  the  parties  to  this  suit,  related 
to  a  statute  of  the  state  of  New  York.  Is  this,  in  the  present  question, 
to  be  considered  fact  or  law? 


Sec.  3)  MISTAKE   OF   LAW  231 

The  existence  of  any  foreign  law  must  be  proved  by  evidence  show- 
ing what  it  is.  And  there  is  no  legal  presumption  that  the  law  of  a 
foreign  state  is  the  same  as  it  is  here.  2  Stark.  Ev.  (Metcalf's  Ed.) 
568;  Male  v.  Roberts,  3  Esp.  Rep.  163.  If  a  foreign  law  is  unwrit- 
ten, it  may  be  proved  by  parol  evidence ;  but  if  written,  it  must  be 
proved  by  documentary  evidence.  Kenny  v.  Clarkson,  1  Johns.  (N. 
Y.)  385,  3  Am.  Dec.  336 ;  Frith  v.  Sprague,  14  Mass.  455 ;  Consequa 
V.  Willings,  1  Pet.  C.  C.  R.  229,  Fed.  Cas.  No.  3,128.  The  laws  of 
other  states  in  the  Union  are  in  these  respects  foreign  laws.  Raynham 
v.  Canton,  3  Pick.  293. 

The  courts  of  this  state  are  not  presumed  to  know  the  laws  of  other 
states  or  foreign  nations,  nor  can  they  take  judicial  cognizance  of  them, 
till  they  are  legally  proved  before  them.  But  when  established  by  le- 
gal proof,  they  are  to  be  construed  by  the  same  rules  and  to  have  the 
same  effect  upon  all  subjects  coming  within  their  operation,  as  the 
laws  of  this  state. 

That  the  lex  loci  rei  sitae  must  govern  the  descent  of  real  estate,  is 
a  principle  of  our  law,  with  which  every  one  is  presumed  to  be  acquaint- 
ed. But  what  the  lex  loci  is,  the  Court  can  only  learn  from  proof  ad- 
duced before  them.  The  parties  knew,  in  fact,  that  the  intestate  died 
seised  of  estate  situated  in  the  state  of  New  York.  They  must  be 
presumed  to  know  that  the  distribution  of  that  estate  must  be  governed 
by  the  laws  of  New  York.  But  are  they  bound,  on  their,  peril,  to 
know  what  the  provisions  of  these  laws  are?  If  the  judicial  tribunals 
are  not  presumed  to  know,  why  should  private  citizens  be?  If  they 
are  to  be  made  known  to  the  court  by  proof,  like  other  facts,  why 
should  not  ignorance  of  tliem  by  private  individuals  have  the  same  ef- 
fect upon  their  acts  as  ignorance  of  other  facts?  Juris  ignorantia  est, 
cum  jus  nostrum  ignoramus,  and  does  not  extend  to  foreign  laws  or  the 
statutes  of  other  states. 

We  are  of  opinion,  that  in  relation  to  the  question  now  before  us, 
the  statute  of  New  York  is  to  be  considered  as  a  fact,  the  ignorance  of 
which  may  be  ground  of  repetition.  And  whether  ignorantia  legis 
furnishes  a  similar  ground  of  repetition,  either  by  the  civil  law,  the  law 
of  England,  or  the  law  of  this  commonwealth,  it  is  not  necessary  for 
us  to  determine.  The  examination,  comparison  and  reconciliation  of 
all  the  conflicting  dicta  and  authorities  on  this  much  discussed  ques- 
tion is  a  labour  which  we  have  neither  leisure  nor  inclination  to  un- 
dertake. 

In  the  view  which  we  have  taken  of  this  case,  it  appears  that  the  de- 
fendant received  a  part  of  the  consideration  for  which  the  plaintiff's 
estate  was  sold ;  that  it  was  received  by  mistake  ;  and  that  this  mistake 
was  in  a  matter  of  fact.  He  therefore  has  in  his  hands  monev  which 
ex  aequo  et  bono  he  is  bound  to  repay,  and  there  is  no  principle  of  law 
which  interposes  to  prevent  the  recovery  of  it  out  of  his  hands. 

The  action  for  money  had  and  received,   which   for  its  equitable 


232  BENEFITS   CONFERRED   BY   MISTAKE  (Ch.  2 

properties  is  ever  viewed  with  favour,  is  the  proper  remedy  for  its 
repetition.  The  mode  in  which  the  payment  was  originahy  secured  by 
bond  and  mortgage,  forms  no  objection  to  the  recovery,  inasmuch  as 
the  money  was  in  fact  paid  before  the  action  was  commenced.  The 
plaintiff's  remedy  will  extend  to  all  the  money  actually  received  by  the 
defendant  beyond  his  legal  proportion  of  the  estate.     *     *     * 

Upon  a  view  of  the  whole  case,  it  is  the  opinion  of  the  Court,  that 
the  plaintiff  recover  one  third  of  the  whole  amount  received  by  the  de- 
fendant on  account  of  the  sale  of  lands  in  New  York,  with  interest 
from  the  service  of  the  writ.^^ 

12  In  Bank  of  Chillicothe  v.  Dodge  (1850)  8  Barb.  (N.  T.)  233,  the  plaintiff, 
an  Oliio  corporation,  discounted  in  Ohio  defendant's  bill  of  exchange  which 
bill  of  exchange  was  illegal  by  a  statute  of  New  York.  Defendant  was  a  resi- 
dent of  JN'ew  York.  Plaintiff  brought  assumpsit  in  New  Y'ork  to  recover  the 
sum  advanced.  Held  for  plaintiff,  on  the  ground  that,  the  paper  being  void, 
the  money  innocently  paid  defendant  was  without  consideration.  The  plain- 
tiff" advanced  the  money  in  Ohio  and  being  an  Ohio  corporation,  was  not  pre- 
sumed to  have  notice  of  the  New  York  statute. 


Sec.  1)         BENEFITS   UNDER  CONTRACT  PARTIALLY   PERFORMED  233 


CHAPTER  III 

BENEFITS  CONFERRED  UNDER  A  CONTRACT  WHICH 
HAS  BEEN  PARTIALLY  PERFORMED 


SECTION  l.—FURTHER  PERFORMANCE  IMPOSSIBLE 
I.  By  Defendant 


ANONYMOUS. 

(Court  of  King's  Bench,  1683.     2  Show.  283.) 

■  This  was  ruled  by  Saunders,  Chief  Justice,  on  evidence  in  a  trial  at 
Guildhall. 

First,  Freight  is  the  mother  of  wages;  and  wheresoever  freight  is 
due,  wages  is  so. 

Secondly,  If  a  ship  be  lost  before  it  comes  to  a  delivering  port,  no 
freight  nor  wages  is  due;  if  lost  afterwards  it  is  due  to  the  last  de- 
livering port. 

Thirdly,  Advance  money  paid  before,  if  in  part  of  freight,  and 
named  so  in  the  charter  party,  although  the  ship  be  lost  before  it  come 
to  a  delivering  port,  yet  wages  are  due  according  to  the  proportion  of 
the  freight  paid  before;    for  the  freighters  cannot  have  their  money. 


REINA  V.  GROSS. 

(Supreme  Court  of  California,  1856.     6  Cal.  29.) 

Appeal  from  District  Court  of  the  Twelfth  Judicial  Circuit. 

Terry,  J.^  This  action  was  brought  by  plamtiff  to  recover  from 
defendant  certain  money  advanced  on  a  contract  of  affreightment. 

The  complaint  alleges  that  defendant  contracted  to  carry  cer- 
tain freight  from  the  port  of  Acapulco  to  Valparaiso,  in  consideration 
of  a  certain  sum  of  money,  a  portion  of  which  was  paid  by  plaintiff 
in  advance.  That  defendant  received  said  freight  on  board  his  ves- 
sel and  departed  on  the  voyage,  but  did  not  perform  his  contract,  be- 
cause of  the  loss  of  said  vessel. at  sea. 

The  complaint  also  contains  a  second  count  for  money  received 
to  the  use  of  plaintiff.     To  this  complaint  defendant  demurred,  on 

1  The  statement  of  facts  is  omitted. 


234  BEXEFITS   UNDER   COXTKACT   PARTIALLY   PERFORMED  (Ch.  3 

the  ground  that  the  complaint  did  not  state  facts  sufficient  to  consti- 
tute a  cause  of  action.  The  Court  below  sustained  the  demurrer,  and 
judgment  was  rendered  in  favor  of  defendant.  From  this  judgment, 
plaintiff  appealed. 

The  second  count  of  the  complaint  is  bad,  because  it  is  not  alleged 
that  demand  had  been  made  on  defendant.  A  party  receiving  mon- 
ey to  the  use  of  another,  is  rightfully  in  possession  until  the  same  is 
demanded. 

The  only  question  involved  in  this  case  is,  the  right  of  plaintiff  to  re- 
cover advanced  freight  money  upon  the  non-performance  of  the  con- 
tract of  affreightment. 

The  general  rule  of  law  is,  that  where  money  is  paid  by  one  per- 
son in  consideration  of  an  act  to  be  done  by  another,  and  the  act  is 
not  performed,  the  money  so  paid  may  be  recovered  back.  Contracts 
for  carrying  freight  form  no  exception  to  this  rule,  unless  by  express 
stipulation  of  the  parties. 

Chief  Justice  Kent,  in  Watson  v.  Duykinck,  says:  "The  general  rule 
undoubtedly  is,  that  freight  is  lost  unless  the  goods  are  carried  to 
the  port  of  destination.  The  rule  seems  also  to  go  further,  and  to 
oblige  the  master,  in  case  of  shipwreck,  to  restore  to  the  shipper  the 
freight  previously  advanced."  See  3  Johns.  (N.  Y.)  339,  and  cases 
there  cited.  The  general  principle  undoubtedly  is,  "that  freight  is 
a  compensation  for  the  carriage  of  goods,  and  if  paid  in  advance, 
and  the  goods  be  not  carried  by  reason  of  any  event  not  imputable 
to  the  shipper,  it  then  forms  the  ordinary  case  of  money  paid  upon 
a  consideration  which  happens  to  fail."    3  Johns.  (N.  Y.)  340.^ 

Chief  Justice  Parker,  in  Griggs  v.  Austin,  3  Pick.  (Mass.)  23,  15 
Am.  Dec.  175,  says:  "It  would  be  an  affectation  of  learning  to  go  over 
the  ground  so  ably  pre-occupied  in  the  opinion  given  in  that  case, 
(Watson  V.  Duykinck,)  especially  as  the  same  ground  has  been  trav- 
ersed by  Mr.  Justice  Story  in  a  note  to  his  edition  of  Abbot  on  Mer- 
chant Ships.  It  is  sufficient  then  to  say,  that  by  reference  to  the  above 
cited  opinion,  and  the  note  of  Mr.  Justice  Story,  it  will  be  found  to  be 
the  established  law  of  the  maritime  countries  on  the  continent  of  Eu- 
rope, that  freight  is  the  compensation  for  the  carriage  of  goods,  and 
if  it  be  paid  in  aL.vance,  and  the  goods  be  not  carried  by  reason  of  any 
event  not  imputable  to  the  shipper,  it  is  to  be  repaid,  unless  there  be 
a  special  agreement  to  the  contrary."  See,  also,  Sansom  v.  Ball,  4 
Dall.  459,  1  L.  Ed.  908 ;  Giles  v.  Brig  Cynthia,  1  Pet.  Admr.  R.  203, 
Fed.  Cas.  No.  5,424,  et  seq.;  Cheriot  v.  Barker,  2  Johns.  (N.  Y.) 
346,  3  Am.  Dec.  437 ;  Gillan  v.  Simkin,  4  Camp.  241 ;  Harris  v.  Rand, 
4  N.  H.  259,  555,  17  Am.  Dec.  421 ;  3  Kent's  Com.  226,  227. 


2  In  Watson  v.  Duykinck  (1S08)  3  Johns.  (N.  Y.)  339.  the  court  denied  a  re- 
covery of  freight  paid  in  advance  on  the  ground  that  the  contract  in  tliat 
case  was  simply  to  deliver  on  board,  Kent,  C.  J.,  saying:  "The  consideration  is 
rendered  by  receiving  the  goods  on  board  and  making  all  due  and  bona  fide 
efforts  to  carry  and  deliver  them." 


Sec.  1)  FURTHER   PERFORMANCE   IMPOSSIBLE  235 

I  am  aware  that  there  are  decisions  of  the  EngHsh  Admiralty 
Courts  which  seem  to  be  in  conflict  with  the  cases  cited ;  *  but  the 
weight  of  authority,  and  the  uniform  ruling  of  the  American  Courts, 
are  conclusive  as  to  the  right  of  the  shipper  to  recover. 

The  final  judgment  of  the  Court  below,  as  well  as  the  judgment 
sustaining  the  demurrer,  is  reversed  with  costs,  and  the  cause  re- 
manded.* 


WRIGHT  V.  NEWTON. 

(Court  of  Exchequer,  1835.     2  Cromp.  M.  &  R.  124.) 

Assumpsit  for  money  had  and  received.     Plea,  non  assumpsit. 

At  the  trial  before  Alderson,  B.,  at  the  last  Lancaster  Assizes,  it 
appeared  that  the  defendant  being  in  the  occupation  of  a  public-house, 
and  being  desirous  of  leaving  it,  entered  into  a  verbal  agreement  with 
the  plaintiff- for  the  sale  to  him,  on  behalf  of  a  Mrs.  Williams,  of  the 
good-will  and  fixtures  of  the  house,  at  the  sum  of  £120.,  £50.  of 
which  was  to  be  paid  on  the  Monday  after,  if  the  landlord  consented 
to  the  change  of  tenancy,  and  on  payment  of  the  remainder  of  the 
money  the  defendant  was  to  give  up  possession.  The  £50.  was  paid  to 
the  defendant  on  the  19th  of  May,  and  on  the  20th,  on  application  be- 
ing made  to  the  landlord,  he  verbally  agreed  to  accept  Mrs.  Wil- 
liams as  tenant.  In  consequence  of  this,  Mrs.  Williams,  for  whom 
the  house  had  been  taken  by  the  plaintiff,  removed,  and  took  her  fur- 
niture to  the  defendant's  house,  and  went  to  reside  there,  and  continued 
there  for  five  or  six  weeks  and  carried  on  the  business,  but  the  de- 
fendant and  his  wife  also  continued  to  reside  there.     It  appeared 

3  "It  is  settled  by  the  authorities  referred  to  in  the  course  of  the  argument, 
that  by  the  law  of  England  a  payment  made  in  advance  on  account  of  freight 
cannot  be  recovered  back  in  the  event  of  the  goods  being  lost,  and  the  freight 
therefore  not  becoming  payable.  I  regret  that  the  law  is  so,  I  think  it  found- 
ed on  an  erroneous  principle  and  anything  but  satisfactory:  and  I  am  em- 
boldened to  say  this  by  hnding  that  the  American  authorities  have  settled 
the  law  upon  distinctly  opposite  piinciples,  and  that  the  law  of  every  Euro- 
pean country  is  in  conformity  with  the  American  doctrine  and  contrary  to 
ours."  Per  Cockburn,  C.  J.,  in  Byrne  v.  Schiller  (1S71)  L.  R.  6  Ex.  319,  at 
325, 

In  Allison  v,  Bristol  Marine  Insurance  Co.  (187G)  L,  R.  1  H,  ly.  209,  at  226, 
Brett,  J.,  explained  the  English  doctrine  "that  the  money  to  be  paid  in  ad- 
vance of  freight,  must  be  paid,  though  the  goods  are  before  payment  lost  by 
perils  of  the  sea,  and  cannot  be  recovered  back  after,  if  paid  before  the  goods 
are  lost  by  perils  of  the  sea,"  by  saying:  "It  arose  in  the  case  of  the  long 
Indian  voyages.  The  length  of  voyage  would  keep  the  shipowner  for  too  long 
time  out  of  money :  and  freight  is  much  more  difficult  to  pledge,  as  a  security 
to  third  persons,  than  goods  represented  by  a  bill  of  lading.  Therefore  the 
shipper  agreed  to  make  the  advance  on  what  he  would  ultimately  have  to  pay, 
and,  for  a  consideration,  took  the  risk  in  order  to  obviate  a  repayment,  which 
disarranges  business  transaction." 

4  Similarly  in  the  United  States  a  passenger  may  recover  unearned  passage 
money  paid  in  advance.  liro\m  v.  Harris  (1854)  2  Gray  (Mass.)  359.  ("Fas- 
sage  money  and  freiglit  are  governed  by  the  same  rules.")  The  Englisli  courts 
do  not  allow  a  recovery  of  passage  money.  Gillau  v.  Simkin  (1S15)  4  Campb. 
241. 


236  BENEFITS   UNDER   CONTRACT   PARTIALLI   PERFORMED  (Ch.  3 

that,  on  the  2d  of  June,  the  landlord  withdrew"  his  consent  to  accept 
Mrs.  Williams  as  tenant.  The  defendant  on  being  informed  of  this, 
said  that  Mrs.  Williams  might  keep  his,  the  defendant's,  name  up, 
and  he  would  give  possession  in  spite  of  the  landlord.  Mrs.  Wil- 
liams subsequently,  by  the  defendant's  consent,  took  away  her  furni- 
ture, but  the  defendant  refused  to  return  the  £50.  The  defendant 
afterwards  sold  the  good-will  and  fixtures  to  another  person,  who 
was  accordingly  let  into  possession.  This  action  was  brought  to  re- 
cover back  the  sum  of  £50.,  as  money  had  and  received  for  the  use  of 
the  plaintiff.  The  learned  Baron  left  it  to  the  jury  to  say  whether 
the  parties  had  agreed  to  rescind  the  contract,  and  if  they  were  of  that 
opinion,  he  directed  them  to  find  a  verdict  for  the  plaintiff ;  which  they 
accordingly  did. 

Cresswell  now  moved  by  leave  of  the  learned  Baron  to  enter  a  non- 
suit. 

Parki:,  B.  It  seems  to  me  that  tliis  was  a  contract  with  a  condition 
that  the  landlord's  consent  should  be  obtained ;  and  the  question  is, 
has  that  condition  been  performed?  There  was  a  deposit  of  £50.  made 
upon  the  landlord's  agreeing  to  take  Mrs.  Williams  as  tenant,  but  the 
remainder  of  the  money  not  having  been  paid,  and  Mrs.  Williams  not 
having  entered  into  possession  as  tenant,  the  landlord  subsequently 
withdrew  his  consent.  I  think  it  must  be  taken  as  if  the  landlord 
never  has  consented ;  and  if  so,  the  condition  has  not  been  perform- 
ed. There  would  be  nothing  to  bind  the  landlord  unless  there  had 
been  an  actual  transfer  of  the  possession.  The  money  was  paid  on 
a  consideration  which  has  failed,  and  therefore  the  plaintifif  is  en- 
titled to  recover  it  back,  as  money  had  and  received  to  his  use.  The 
simple  question  is,  whether  the  landlord's  consent  of  the  19th  of 
May  was  binding  upon  him?  I  think  it  was  not,  and  therefore  the 
condition  was  not  performed.    There  must  be  no  rule.    . 

B0LI.AND,  B.  The  consent  would  have  been  sufficient  if  Mrs.  Wil- 
liams had  acted  upon  it  before  it  was  withdrawn,  by  paying  the  re- 
mainder of  the  purchase-money,  and  getting  into  possession  as  tenant. 
As  it  was  withdrawn  before  Mrs.  Williams  took  possession  as  tenant, 
I  think  that  the  verdict  was  right. 

Alderson,  B.  I  tliink  that  the  defendant  never  gave  up  possession 
to  Mrs.  Williams  as  tenant.  He  kept  possession  of  the  house  for  a 
very  good  reason;  because  the  remainder  of  the  purchase-money  was 
not  paid. 

Rule  refused.' 

6  In  Wilkinson  v.  Lloyd  (1845)  L.  R.  7  Q.  B.  27,  the  plaintiff  had  purchased 
of  the  defendant  certain  shares  in  a  public  company,  and  bad  paid  the  pur- 
chase money  to  the  defendant.  The  defendant  on  his  part  had  executed  the 
transfers :  and  nothing  remained  to  be  done  but  to  obtain  the  consent  of  the 
directors  that  an  entry  of  the  transfer  should  be  made  in  the  lioolcs  of  the 
company.  Owing  to  some  disputes  between  the  defendant  and  the  directors, 
no  consent  could  be  obtained  from  the  latter ;  and  in  consequence  the  trans- 
fer never  was  completed,  and  the  plaintiff  never  was  put  into  possession  of 


Sec.  1)  FURTHER   PERFORMANCE   IMPOSSIBLE  237 

WHINCUP  V.  HUGHES. 

(Court  of  Common  Pleas,  1871.     L.  R.  6  C.  P.  78.) 

Action  in  the  Salford  Hundred  Court  against  the  defendant  as 
executrix  of  Thomas  Rogers  Hughes,  deceased. 

The  first  count  of  the  declaration  stated  that  the  testator  co\enanted 
with  the  plaintiff  to  instruct  one  George  Whincup,  the  younger,  dur- 
ing the  term  of  six  years,  from  the  31st  of  July,  1868,  in  the  business 
of  a  watchmaker  and  jeweller.    Breach,  that  he  did  not  so  instruct  him. 

Second  count,  for  money  had  and  received  by  the  testator  for  the 
use  of  plaintiff,  and  for  money  had  and  received  by  the  defendant  as 
executrix,  for  the  use  of  the  plaintiff. 

Third  plea  (inter  alia)  to  the  first  count,  that  after  the  making  of  the 
said  covenant,  and  after  the  said  Thomas  Rogers  Hughes  had  for  the 
space  of  twelve  months  instructed  the  said  George  Whincup,  the 
younger,  in  his  said  business  according  to  his  said  covenant,  the  said 
Thomas  Rogers  Hughes  died,  and  was  thereby  prevented  from  any 
further  performance  of  his  said  covenant. 

To  the  rest  of  the  declaration,  never  indebted. 

Issues  and  demurrer  to  third  plea. 

At  the  trial  the  facts  appeared  to  be  as  follows:  The  plaintiff  had 
apprenticed  his  son  to  the  defendant's  testator,  a  watchmaker  and 
jeweller,  by  a  deed  bearing  date  the  26th  of  November,  1868,  for  the 
term  of  six  years,  to  be  computed  from  the  preceding  31st  of  July. 
The  plaintiff  covenanted  to  pay  a  premium  of  £25.  to  the  master,  and 
provide  the  apprentice  with  food  and  clothing  during  the  term,  in 
consideration  whereof  the  master  covenanted  with  the  plaintiff  to 
instruct  the  apprentice  in  his  business,  and  to  pay  him  wages  accord- 

the  shares,  and  never  became  the  legal  owner  of  them.  The  plaintiff, 
without  returning  the  transfers  executed  by  the  defendant,  but  which  had 
been  procured  by  the  plaintiff,  brought  an  action  for  money  had  and  re- 
ceived to  recover  the  amount  paid  by  him.  The  court  held  for  the  plaintiff; 
Patteson,  J.,  saying:  "We  think  that  the  defendant  was  bound  to  procure  the 
assent  of  the  directors,  and  to  do  all  that  was  necessary  to  invest  the  plain- 
tiff with  the  property  in  the  shares.  The  cases  that  have  been  decidefl  with 
respect  to  the  obligation  upon  the  vendor  of  a  lease  to  obtain  the  landlord's 
consent  to  an  assignment  where  the  lease  requires  it  apply  to  this:  the  pur- 
chaser has  a  right  to  require  the  seller  to  give  hiju  the  possession,  or  the  means 
of  obtaining  the  possession,  of  the  thing  purchased,  or  the  consideration  fails." 

In  Watson  v.  Donald  (1908)  142  111.  App.  110.  Donald  bad  contracted  with 
the  owner  of  a  patent  to  fonn  a  corporation  to  introduce  and  promote  the 
patented  article.  Donald  then  contracted  with  Watson  to  transfer  to  him  a 
certain  portion  of  tbe  stock  of  such  company,  Watson  paying  Donald  ."JSOO  in 
advance  for  such  stock.  Tbe  owner  of  the  i)'itent  having  repudiated  his  con- 
tract with  Donald,  Donald  accepted  tliat  repudiation  as  an  accomplished,  al- 
though unwarranted,  act  by  suing  such  party  for  breach  of  contract  The 
court  allowed  Watson  to  recover  from  Donald  the  $500. 

See,  also,  Raney  v.  Boyd  (18(J5)  39  111.  24. 

One  who  enters  into  a  contract  for  the  purchase  of  land  and  makes  a  part 
payment  of  the  purchase  price  may  recov(>r  such  paymcMit  if  tbe  vendor  can- 
not make  out  title  to  the  premises  sold.  I'.urroughs  v.  Skinner  (1770)  5  Burr. 
2639;  Moore  v.  Williams  (1889)  115  N.  Y.  580,  22  N.  E.  233,  5  L.  R.  A.  G54,  12 
Am.  St.  Rep.  844. 


23S  BENEFITS   UNDER   CONTRACT   PARTIALLY   PERFORMED  (Ch.  3 

ing  to  an  ascending  scale,  commencing  at  4s.  per  week  during  the  first 
year,  and  ending  at  10s.  per  week  in  the  last  year  of  the  term.  The 
plaintiff  paid  the  premium,  and  the  apprentice  was  duly  instructed  up 
to  the  14th  of  November,  1869,  when  the  defendant's  testator  died., 

The  learned  judge,  upon  these  facts,  held  that  the  covenant  to  in- 
struct the  apprentice  was  a  merely  personal  covenant,  which  was  put 
an  end  to  by  the  testator's  death,  and  that  the  plaintiff  could  not,  there- 
fore, recover  on  the  first  count;  but  he  held  that  the  plaintiff  might 
recover  a  part  of  the  premium  paid  under  the  common  counts,  on  the 
ground  of  failure  of  consideration.  The  verdict  was  thereupon  enter- 
ed for  the  plaintiff  for  the  sum  of  £15.  the  amount  found  by  the  judge, 
to  whom  the  question  of  amount  was  left  by  consent;  leave  being 
reserved  to  the  defendant  to  move  to  enter  a  nonsuit,  on  the  ground 
that  neither  the  premium  paid  at  the  commencement  of  the  apprentice- 
ship, nor  any  part  of  it  was  recoverable  back,  the  consideration  for 
its  payment  not  halving  failed,  either  wholly  or  as  to  any  apportiona- 
ble  part. 

A  rule  nisi  was  obtained  by  defendant. 

BoviLL,  C.  J.®  This  is  an  action  brought  to  recover  a  part  of  the 
premium  paid  upon  the  execution  of  an  apprenticeship  deed,  on  the 
ground  of  failure  of  consideration.  The  general  rule  of  law  is,  that 
where  a  contract  has  been  in  part  performed  no  part  of  the  money 
paid  under  such  contract  can  be  recovered  back.  There  may  be  some 
cases  of  partial  performance  which  form  exceptions  to  this  rule,  as, 
for  instance,  if  there  were  a  contract  to  deliver  ten  sacks  of  wheat  and 
six  only  were  delivered,  the  price  of  the  remaining  four  might  be  re- 
covered back.  But  there  the  consideration  is  clearly>  severable.  The 
general  rule  being  what  I  have  stated,  is  there  anything  in  the  present 
case  to  take  it  out  of  such  rule?  The  master  instructed  the  appren- 
tice under  the  deed  for  the  period  of  a  year,  and  then  died.  It  is  clear 
law  that  the  contract  being  of  a  personal  nature,  the  death  of  the  mas- 
ter, in  the  absence  of  any  stipulation  to  the  contrary,  puts  an  end  to  it 
for  the  future.  The  further  performance  of  it  has  been  prevented  by 
the  act  of  God,  and  there  is  thus  no  breach  of  contract  upon  which  any 
action  will  lie  against  the  executor.  That  being  so,  can  any  action  be 
maintained  otherwise  than  upon  the  contract?  The  contract  having 
been  in  part  performed,  it  would  seem  that  the  general  rule  must  ap- 
ply unless  the  consideration  be  in  its  nature  apportionable.  I  am  at  a 
loss  to  see  on  what  principal  such  apportionment  could  be  made.  It 
could  not  properly  be  made  with  reference  to  the  proportion  which 
the  period  during  which  the  apprentice  was  instructed  bears  to  the 
whole  term.  In  the  early  part  of  the  term  the  teaching  would  be 
most  onerous,  and  the  services  of  the  apprentice  of  little  value ;  as  time 
went  on  his  services  would  probably  be  worth  more,  and  he  would 
require  less  teaching. 

6  The  concurring  opinions  of  Brett,  Willes,  and  Montague  Smith,  JJ.,  are 
omitted. 


Sec.  1)  FURTHER  PERFORMANCE  IMPOSSIBLE  239 

There  appears  to  be  no  instance  of  a  similar  nature  to  the  present  in 
which  an  action  for  the  return  of  a  part  of  the  premium  has  been 
brought.  There  have  been  attempts  to  recover  part  of  the  premium 
in  the  case  of  articled  clerks.  In  Ex  parte  Bayley,  9  B.  &  C.  691, 
which  has  been  cited,  the  decision  was  not  put  on  the  ground  of  legal 
liability,  but  of  the  authority  exercised  by  the  Court  over  one  of  its 
own  officers.  In  the  case  of  Re  Thompson,  1  Ex.  864,  than  which  a 
stronger  case  could  hardly  exist,  inasmuch  as  there  the  clerk  died 
within  a  month  after  a  premium  of  over  £200.  was  paid,  an  application 
was  made  to  the  Court  in  the  exercise  of  its  summary  jurisdiction,  but 
they  declined  to  order  the  return  of  any  part  of  the  premium.  It  was 
assumed  in  that  case  that  no  action  at  law  could  lie,  for  otherwise  the 
application  would  have  been  unnecessary.  Thus  it  appears  that  even 
on  application  to  the  extraordinary  jurisdiction  of  the  Court  over  its 
own  officer,  the  Court  of  Exchequer  deliberately  came  to  the  conclu- 
sion that  neither  in  law  nor  in  justice  was  there  any  right  under  such 
circumstances  to  a  return  of  premium.  With  regard  to  the  justice  of 
such  a  case,  it  is  clear  that  it  would  be  almost  impossible  to  estimate 
what  the  master  might  on  his  side  have  lost  by  the  loss  of  the  service 
cf  the  apprentice.  Again,  the  person  receiving  the  premium  naturally 
assumes  that  it  becomes  his  property  to  be  dealt  with  as  he  pleases; 
he  is  perfectly  ready  to  perform  his  part  of  the  contract ;  he  never 
undertakes  to  return  any  part  of  the  premium,  and  the  necessity  for 
such  return  is  never  contemplated. 

We  have  been  pressed  with  the  authority  of  the  case  of  Hirst  v. 
Tolson,  2  Mac.  &  G.  134,  19  L.  J.  Ch.  441,  where  an  attorney  having 
died,  the  Lord  Chancellor  ordered  the  return  of  a  part  of  the  premium 
paid  by  an  articled  clerk.  But  this  decision  expressly  proceeded  on 
the  supposition  that  such  part  of  the  premium  would  be  a  debt  in  law, 
although  the  Lord  Chancellor  came  to  the  conclusion  that  under  the 
circumstances  it  was  not  necessary  to  send  the  plaintiff  to  seek  a  rem- 
edy in  a  court  of  law,  but  he  might  recover  in  equity.  The  Lord  Chan- 
cellor refers  to  the  case  of  Stokes  v.  Twitchin,  8  Taunt.  492,  as  es- 
tablishing the  principle  that  where  there  is  such  a  partial  failure  of 
consideration,  an  action  is  maintainable.  On  referring  to  that  case  it 
appears  that  it  is  no  authority  for  any  such  proposition.  In  that  case 
the  indenture  was  void  for  breach  of  the  provisions  of  a  statute.  The 
plaintiff  claimed  the  whole  premium  back  on  the  ground  of  total  fail- 
ure of  consideration.  There  is  no  doubt  that  money  had  and  received 
will  lie  upon  such  a  failure  of  consideration,  though  the  plaintiff  failed 
in  that  case  on  the  ground  that  he  was  himself  party  to  the  illegality. 

With  regard  to  the  equity  of  the  case,  the  Lord  Chancellor  refers 
to  two  former  decisions  in  the  time  of  Vernon  and  Finch,  which  ap- 
pear to  be  Soam  v.  Bowden,  Finch,  396,  and  Newton  v.  Rouse,  1  Vern. 
460.  On  referring  to  the  report  of  the  former  case  in  Finch,  it  appears 
that  there  the  master  had  received  a  premium  of  £250.  and  died  within 
two  years,  and  a  bill  having  been  filed  against  the  executors  for  tlie 


240  BENEFITS   UNDER  CONTRACT   PARTIALLY   PERFORMED  (Ch.  3 

return  of  a  portion  of  the  premium,  it  is  stated  that  the  executors  said 
that  they  would  be  wiUing  to  do  whatever  the  Court  should  direct  in 
the  matter.  It  is  quite  consistent  with  this  report  that  the  executors 
really  did  not  contest  the  point,  but  submitted  to  what  the  Court  might, 
under  the  circumstances,  think  just.  The  case  of  Newton  v.  Rouse, 
1  Vern.  460,  is  certainly  a  very  remarkable  case,  because  there  the 
agreement  contained  an  express  provision  that  in  case  of  death  £60. 
should  be  returned,  and  on  a  bill  being  filed,  the  Court  decreed  the 
return  of  £100.  This  is  certainly  wholly  inconsistent  with  the  prin- 
ciples regulating  the  interpretation  of  contracts  both  at  law  and  equi- 
ty. The  only  possible  ground  on  which  the  decision  can  be  explained 
is  that  mentioned  by  the  note  to  the  case  in  the  3rd  ed.  of  Vernon,  by 
Mr.  Raithby,  and  referred  to  in  1  Story's  Equity  Jurisprudence  (10th 
Ed.)  p.  472,  viz.,  that  it  must  have  been  a  case  of  mutual  mistake,  mis- 
representation, or  unconscientious  advantage  taken  by  one  side  of  the 
other.  Under  these  circumstances,  it  does  not  appear  to  me  that  the 
case  of  Hirst  v.  Tolson,  2  Mac.  &  G.  134,  19  L.  J.  Ch.  441,  is  a  satis- 
factory authority  or  one  by  which  we  are  bound.  It  appears  to  be 
based  on  a  misapprehension  of  the  law  on  the  subject,  and  is  distinctly 
contrary  to  the  opmion  of  the  Court  of  Exchequer  in  Re  Thompson,  1 
Ex.  864.  For  these  reasons  I  think  the  rule  ought  to  be  made  absolute. 
Rule  absolute.' 


McCAMMON  V.  PECK. 

(Circuit  Court  of  Ohio,  First  Circuit,  1S95.     9  Oliio  Cir.  Ct.  R.  589.) 

Swing,  J.  In  the  case  of  Coe  v.  Smith,  4  Ind.  79,  58  Am.  Dec.  618, 
it  is  held :  "When  an  attorney  at  law  engages  to  defend  a  cause  for  a 
specified  sum,  and  dies  before  the  cause  is  determined,  his  administra- 
tor may  recover  from  the  client,  upon  a  quantum  meruit,  the  amount 
which  the  intestate's  services  were  really  worth  to  him.  The  recovery 
cannot,  however,  exceed  the  contract  price,  or  the  rate  of  it  for  the 
part  of  the  service  performed." 

This  case,  it  seems  to  us,  is  a  very  clear  and  satisfactory  statement 
of  the  American  law  as  applied  to  this  class  of  contracts,  and  it  is 
fully  sustained  by  the  following  cases  which  we  have  examined :  Hub- 
bard V.  Belden,  27  Vt.  645,  Patrick  v.  Putnam,  27  Vt.  759,  Lakeman 
V.  Pollard,  43  Me.  463,  69  Am.  Dec.  77,  Hargrave  v.  Conroy,  19  N.  J. 
Eq.  281,  and  others.  In  fact  we  find  no  recent  American  authority  to 
be  contrary.  This  holding  is  contrary  to  the  leading  English  case  of 
Cutter  v.  Powell ;  *  but  this  latter  case  has  always  been  criticised  in  this 
country.     Kent  said  it  "operated  in  some  cases  most  unjustly,"  and 

1  See,  also,  Pinkham  v.  Libbey  (1900)  93  Me.  575,  45  Atl.  823,  49  L.  R.  A.  093. 
8  Cutter  V.  Powell  (1795)  6  Terra  R.  .S20,  is  priffced  at  page  249,  infra. 


Sec.  1)  FURTHER  PERFORMANCE  IMPOSSIBLE  241 

that  it  had  been  in  some  cases  doubted  and  in  others  denied.  Judge 
Story,  in  Brooks  v.  Byam,  2  Story,  525,  Fed.  Cas.  No.  1,948,  doubts 
whether  it  was  correctly  decided. 

But  we  are  unable  to  find  any  recent  American  text  book  or  decision 
which  adheres  to  the  rule  of  Cutter  v.  Powell.  And  if  as  Kent  says, 
it  operates  in  some  cases  most  unjustly,  why  should  it  be  followed  if 
a  rule  can  be  found  to  take  its  place  which  operates  justly?  Such  a 
rule,  it  seems  to  us,  is  announced  in  the  case  of  Coe  v.  Smith,  supra. 
It  is  founded  in  right  and  justice.  Coe  had  received  valuable  services, 
for  which  he  had  refused  to  pay,  because  he  had  not  received  the  ex- 
act services  for  which  he  had  contracted,  but  the  contract  had  become 
impossible  of  performance  by  reason  of  the  death  of  the  other  party, 
of  course,  by  no  fault  of  the  other  party.  That  Coe  should  pay  for 
services  actually  received  by  him,  under  such  circumstances,  would 
seem  to  be  nothing  more  than  right. 

The  case  at  bar  is  not  exactly  this  case,  but  the  converse.  But  we 
are  unable  to  see  why  the  principle  applicable  should  not  be  the  same. 

If  McCammon  had  agreed  to  pay  defendants  $1,500  upon  comple- 
tion of  the  contract,  and,  after  performing  part,  I.  M.  Jordan  had  died 
and  McCammon  had  refused  to  pay  any  part,  although  admitting  that 
services  had  been  performed  under  the  contract  which  was  of  the 
value  of  $250  to  him,  the  case  would  be  identical.  What  difference 
can  it  make  in  principle  as  to  the  rights  of  tlie  parties  whether  Mc- 
Cammon had  agreed  to  pay  for  certain  work  to  be  performed  or  had 
paid  in  advance  for  its  performance?  The  reason  of  the  law  is  that 
a  person,  having  rendered  service  to  another  of  the  value  of  $250, 
should  recover  that  amount,  his  death  being  in  law  a  good  excuse  foi* 
the  non-performance  of  the  entire  contract,  but  having  received  the 
whole  consideration  for  the  performance  of  the  entire  contract  and 
then  dying  after  only  part  performance,  why  should  he  retain  the 
whole  consideration  when  he  had  only  given  a  part  performance? 
Certainly  it  cannot  be  claimed  that  such  a  rule  would  have  any  founda- 
tion in  right  and  justice.  And  we  are  unable  to  find  any  technical  rule 
of  law  which  requires  the  enforcement  of  such  a  law.  All  persons 
are  presumed  to  contract  with  a  view  to  death  putting  an  end  to  con- 
tracts of  this  character,  and  the  theory  of  the  law  is  that  death  should 
work  as  little  injury  to  either  party  as  possible.  It  denies  a  right  of 
action  against  the  one  dying  for  failure  to  perform  and  permits  him 
to  recover  for  the  value  of  the  services  performed,  although  only  a 
part  of  what  he  contracted  to  do.  In  the  case  at  bar  Jordan  got  paid 
in  advance  $1,500  for  the  performance  of  an  entire  contract.  He  dies, 
having  performed  a  part  of  the  admitted  value  of  $250.  Why  should 
his  death  relieve  him  from  damages  for  the  non-performance  of  the 
contract  and  at  the  same  time  permit  him  to  retain  the  whole  consider- 
tion?  There  can  be  no  presumption  that  he  was  to  get  it  all  if  he  died, 
any  more  than  he  was  not  to  get  any  if  he  died,  and  we  are  unable  to 
Thurs.Quasi  Cont.^16 


242  BENEFITS   UNDER   CONTRACT   PARTIALLY   PERFORMED         (Ch.  3 

see  any  reason  why  the  rights  of  the  parties  should  be  different  wheth- 
er the  money  was  paid  or  was  to  be  paid. 

The  plaintiff,  both  upon  autliorit}'  and  principle,  is  entitled  to  judg- 
ment on  the  pleadings. 

The  judgment  of  the  superior  court,  sustaining  demurrer  to  petition 
and  overruling  demurrer  to  answer  of  Mr.  Jordan,  will  be  reversed 
and  cause  remanded  for  further  proceedings." 


CHANDLER  v.  WEBSTER, 

(King's  Bench  Division.     [1904]  1  K.  B.  493.) 

Appeal  by  the  defendant,  and  cross-appeal  by  the  plaintiff,  from  a 
judgment  of  Wright,  J.,  in  an  action  tried  by  him  without  a  jury. 

The  action  was  brought  by  the  plaintiff  to  recover  a  sum  of  £100. 
paid  by  him  to  the  defendant  as  on  a  total  failure  of  consideration, 
and  the  defendant  counter-claimed  for  a  sum  of  £41.  15s. 

Wright,  J.,  held  that  the  plaintiff  was  not  entitled  to  recover  the 
£100.  which  he  had  paid,  and  that  the  defendant  was  not  entitled  to 
recover  on  the  counter-claim. 

Collins,  M.  R.^"  In  this  case  the  plaintiff  agreed  with  the  defendant 
for  the  hire  of  a  room  for  the  purpose  of  viewing  the  coronation  pro- 
cession. The  price  of  the  room  was  to  be  £141.  15s.  The  plaintiff 
paid  £100.  before  the  date  fixed  for  the  procession,  leaving  a  balance 
of  £41.  15s.  unpaid.  The  procession  did  not  take  place.  The  plaintiff 
thereupon  brought  an  action  to  recover  the  £100.  which  he  had  paid, 
and  in  that  action  the  defendant  counter-claimed  for  the  unpaid  bal- 
ance of  £41.  15s.  The  learned  judge  decided  that  both  the  claim  and 
the  counter-claim  failed ;  that  the  plaintiff  was  not  entitled  to  recover 
back  the  £100.  paid  by  him,  and  the  defendant  was  not  entitled  to  be 
paid  the  balance  of  £41.  15s.  Against  this  decision  both  the  parties 
appeal,  the  defendant's  appeal  being  the  first  in  date.  He  contends 
that  in  the  event  which  happened,  having  regard  to  the  terms  of  the 
contract,  he  is  entitled  to  the  balance  of  £41.  15s.  which  the  plaintiff 
has  refused  to  pay  him.  I  will  deal  with  that  appeal  first.*  The  ques- 
tion appears  really  to  depend  upon  the  terms  of  the  contract  made  by 
the  parties.  Contracts  in  these  cases  arising  out  of  the  postponement 
of  the  coronation  have  formed  the  subject  of  several  decisions ;  and 
it  has  been  held  that,  in  cases  where  the  doctrine  of  Taylor  v.  Caldwell, 
3  B.  &  S.  826,  applies,  that  is  to  say,  where  the  parties  have  made  no 
express  stipulation  that  money  paid  for  viewing  the  procession  shall 

«  On  appeal,  the  Supreme  Court  of  Ohio  (apparently  without  writing  any 
opinion)  reversed  the  judgment  of  the  circuit  court  and  affirmed  the  judgment 
of  the  trial  court     Jordan  v.  McCammon,  56  Ohio  St.  790,  49  N.  E.  1111. 

10  The  statement  of  facts  is  omitted,  and  the  concurring  opinions  of  Romer 
and  Mathew,  L.  JJ.,  are  omitted. 

*Other  cases  discussing  this  question  are  printed  at  page  246  et  seq.,  infra. 


Sec.  1)  FURTHER  PERFORMANCE   IMPOSSIBLE  243 

be  returned  in  the  event  of  no  procession  taking  place,  and  where,  un- 
der the  circumstances  of  the  contract,  no  condition  to  that  effect  can 
be  imphed,  the  result  of  tlie  procession  being  prevented  from  taking 
place  is  that,  tlie  further  performance  of  the  contract  having  beqome 
impossible,  the  person  who  has  paid  his  money  in  pursuance  of  it,  on 
the  footing  of  tlie  contract  being  subsequently  performed  in  full,  must, 
nevertheless,  abide  the  loss  of  what  he  has  paid ;  and  the  person  to 
whom  a  sum  would  have  become  payable  on  performance  of  the  con- 
tract must  also  abide  the  loss,  and  cannot  impose  on  the  other  party 
the  obligation  of  paying  that  sum;  in  the  event  which  has  happened, 
the  fulfilment  of  the  contract  having  become  impossible,  both  parties 
are  relieved  from  further  performance  of  it.  The  question  is  how 
the  law  so  laid  down  is  to  be  applied  in  the  present  case. 

Dealing  first  with  the  defendant's  counter-claim  for  the  balance  of 
£41.  15s.,  I  think  tliat,  upon  the  authorities,  it  is  clear  that  the  defend- 
ant has  a  right  to  recover  that  balance,  if  the  contract  was  that  the 
price  of  the  room  should  be  paid  before  the  time  at  which  the  proces- 
sion became  impossible.  A  person  who  has  agreed  to  pay  a  sum  of 
money  cannot  be  in  a  better  position  by  reason  of  his  having  failed 
to  perform  his  obligation  to  pay  it  at  the  time  when  he  ought  to  have 
done  so,  than  that  which  he  would  have  occupied  if  he  had  paid  the 
money  in  accordance  with  the  contract.  If  that  be  so,  the  question 
which  we  have  to  consider  is  whether  the  contract  entered  into  bound 
the  plaintiff  to  pay  the  price  of  the  room  before  the  date  at  which 
the  procession  became  impossible.  In  my  opinion  it  did  so  bind  him, 
and  it  was  not  a  condition  precedent  to  his  obligation  to  pay  the  money 
that  the  procession  should  take  place.  The  terms  of  the  contract  are 
to  be  gathered  from  the  correspondence  between  the  parties.  I  need 
not  refer  to  it  in  detail.  It  appears  to  me  to  be  clear  upon  the  corre- 
spondence that  the  understanding  was  that  the  £141.  15s.  for  the  use 
of  the  room  was  to  be  paid,  either  immediately,  or,  at  any  rate,  as  soon 
as  possible  after  the  making  of  the  contract,  and  certainly  before  the 
date  when  the  procession  became  impossible.  The  defendant  repeated- 
ly asserts  in  his  letters  that  the  money  has  become  payable ;  and  I  do 
not  find  that  the  plaintiff  substantially  disputes  that  assertion  in  his 
answers  further  than  by  qualifying  it  to  the  extent  of  saying  that 
there  was  no  absolute  bargain  that  the  price  should  be  paid  down  in 
cash  immediately  after  the  making  of  the  contract ;  but  I  think  that 
his  qualification  really  amounts  to  an  admission  that  it  was  payable 
before  the  time  at  which  the  procession  became  impossible. 

Great  reliance  was  placed  by  the  plaintiff's  counsel  upon  the  letter 
of  June  10,  upon  which  Wright,  J.,  decided  the  case,  but  it  appears 
to  me  that  that  letter  is  really  a  clear  admission  by  the  plaintiff'  that 
the  obligation  to  pay  the  money  had  already  accrued.  On  that  letter 
Wright,  J.,  seems  to  have  come  to  the  conclusion  that  the  happening 
of  the  procession  was  made  a  condition  precedent  to  the  liability  of 
the  plaintiff  to  pay,  and  therefore  that,  as  to  the  balance  of  £41.  15s., 


244  BENEFITS  UNDER  CONTRACT  PARTIALLY  PERFORMED         (Ch.  3 

the  plaintiff  was  not  liable.  For  the  reasons  I  have  already  given  I 
do  not  think  that  was  the  true  effect  of  the  original  contract,  and  the 
letter  of  June  10  appears  to  me  to  begin  with  a  clear  admission  that 
the  whole  amount  of  il41.  15s.  was  then  due,  and  then  to  suggest, 
merely  by  way  of  indulgence  to  the  plaintiff,  that  an  opportunity 
should  be  given  him  of  raising  the  money  by  letting  seats  in  the  room 
for  the  procession,  without  any  waiver  of  the  rights  of  the  defendant 
under  the  original  contract.  ^^  That  being  so,  in  my  opinion  the  appli- 
cation of  the  law,  as  established  by  the  authorities  which  have  been 
cited,  to  this  case  is  clear.  The  fulfilment  of  the  contract  having  be- 
come impossible  through  no  fault  of  either  party,  the  law  leaves  the 
parties  where  they  were,  and  relieves  them  both  from  further  per- 
formance of  the  contract.  Therefore,  if  by  the  contract  the  obligation 
to  pay  for  the  room  did  not  arise  until  after  the  procession  had  taken 
place,  then,  the  obligation  being  based  on  the  happening  of  the  proces- 
sion, which  has  become  impossible,  the  hirer  is  relieved  from  that 
obligation;  but  if  by  the  contract  the  obligation  to  pay  for  the  room 
had  accrued  before  the  procession  became  impossible,  the  hirer,  if  he 
has  paid,  cannot  get  his  money  back,  and,  if  he  has  not  paid,  is  still 
liable  to  pay.  That  being  so,  it  appears  to  me  that  the  defendant  is  en- 
titled to  succeed  on  the  counter-claim. 

Then,  with  regard  to  the  plaintiff's  claim  for  a  return  of  the  £100., 
to  a  very  considerable  extent  I  have  already  dealt  incidentally  with 
the  considerations  which  apply  to  that  claim.  The  plaintiff  contends 
that  he  is  entitled  to  recover  the  money  which  he  has  paid  on  the 
ground  that  there  has  been  a  total  failure  of  consideration.  He  says 
that  the  condition  on  which  he  paid  the  money  was  that  the  procession 
should  take  place,  and  that,  as  it  did  not  take  place,  there  has  been  a 
total  failure  of  consideration.  That  contention  does  no  doubt  raise  a 
question  of  some  difficulty,  and  one  which  has  perplexed  the  Courts  to 
a  considerable  extent  in  several  cases.  The  principle  on  which  it  has 
been  dealt  with  is  that  which  was  applied  in  Taylor  v.  Caldwell,  3  B. 
&  S.  826, — namely,  that,  where,  from  causes  outside  the  volition  of  the 
parties,  something  which  was  the  basis  of,  or  essential  to  the  fulfilment 
of,  the  contract,  has  become  impossible,  so  that,  from  the  time  when 
the  fact  of  that  impossibility  has  been  ascertained,  the  contract  can  no 
further  be  performed  by  either  party,  it  remains  a  perfectly  good  con- 
tract up  to  that  point,  and  everything  previously  done  in  pursuance  of 
it  must  be  treated  as  rightly  done,  but  the  parties  are  both  discharged 
from  further  performance  of  it.     If  the  effect  were  that  the  contract 

11  The  plaintiff's  letter  to  defendant  under  date  of  June  10,  1902,  was  as 

follows:  "1  beg  to  confirm  my  purchase  of  the  first-floor  room  of  the  Electric 
Lighting  Board  at  7,  Pall  Mall,  to  view  the  procession  on  Thursday,  June  26, 
for  the  sum  of  £141.  15s.,  which  amount  is  now  due.  I  shall  be  obliged  if  you 
will  take  the  room  on  sale,  and  I  authorize  you  to  sell  separate  seats  in  the 
room  for  which  I  will  erect  a  stand.  If  the  seats  thus  sold  in  the  ordinary 
way  or  business  do  not  realize  the  above  amoimt  by  June  26,  I  agree  to  pay 
you  the  balance  to  make  up  such  amount  of  £141.  15s." 


Sec.  1)  FURTHER  PERFORMANCE   IMPOSSIBLE  245 

were  wiped  out  altogether,  no  doubt  the  result  would  be  that  money 
paid  under  it  would  have  to  be  repaid  as  on  a  failure  of  consideration. 
But  that  is  not  the  effect  of  the  doctrine ;  it  only  releases  the  parties 
from  further  performance  of  the  contract.  Therefore  the  doctrine 
of  failure  of  consideration  does  not  apply. 

The  rule  adopted  by  the  Courts  in  such  cases  is  I  think  to  some  ex- 
tent an  arbitrary  one,  the  reason  for  its  adoption  being  that  it  is  really 
impossible  in  such  cases  to  work  out  with  any  certainty  what  the  rights 
of  the  parties  in  the  event  which  has  happened  should  be.  Time  has 
elapsed,  and  the  position  of  both  parties  may  have  been  more  or  less 
altered,  and  it  is  impossible  to  adjust  or  ascertain  the  rights  of  the 
parties  with  exactitude.  That  being  so,  the  law  treats  everything  that 
has  already  been  done  in  pursuance  of  the  contract  as  validly  done,  but 
relieves  the  parties  of  further  responsibility  under  it.  In  the  case  of 
Blakely  v.  Muller  &  Co.,  [1903]  2  K.  B.  760,  Wills,  J.,  in  giving  judg- 
ment made  some  valuable  observations  on  this  point.  He  said,  with 
regard  to  the  decision  in  Appleby  v.  Myers,  L.  R.  2  C.  P.  651* :  "That 
decision  is,  in  my  opinion,  distinctly  in  point.  The  argument  for  the 
plaintiffs  must  be  that  the  contract  was  rescinded  ab  initio.  There  is 
no  authority  to  warrant  that  contention,  and  I  cannot  think  it  is  well 
founded.  The  process  of  constructing  a  hypothetical  contract  by  sup- 
posing what  terms  the  parties  would  have  arrived  at  if  they  had  con- 
tempFated  the  possibility  of  what  was  going  to  happen  is,  to  my  mind, 
very  unsatisfactory.  It  is  very  difficult  to  construct  such  a  contract 
for  them.  Probably,  in  the  present  case,  the  defendants  would  have 
stipulated  for  compensation  for  their  outlay,  and  the  plaintiffs  for  a 
return  of  their  money;  but  it  is  impossible  to  say  with  any  certainty 
what  the  result  of  their  bargaining  would  have  been."  It  seems  to  me 
that  he  there  points  out  the  reason  why  the  Courts  have  been  obliged 
to  stop  short  where  they  have,  namely,  at  the  position  of  the  parties 
when  the  further  performance  of  the  contract  was  excused  for  both, 
and  why  they  have  felt  themselves  constrained  to  adopt  what  appears 
to  be  a  more  or  less  arbitrary  rule  on  the  subject. 

I  think  the  same  principle  has  been  adopted  by  the  decision  of  this 
Court  in  Civil  Service  Co-operative  Society  v.  General  Steam  Naviga- 
tion Co.,  [1903]  2  K.  B.  756,  at  p.  764,  where  the  Lord  Chancellor  ap- 
proved of  a  passage  from  the  judgment  of  Channell,  J.,  in  the  case  of 
Blakely  v.  Muller  &  Co.,  [1903]  2  K.  B.  760,  at  p.  762.^^    In  that  pas- 

*See  note,  page  267,  for  a  brief  statement  of  Appleby  v.  Myers. 

12  In  the  case  of  Blakely  v.  Muller  &  Co.,  [1903]  2  K.  B.  760,  note,  Channell, 
J.,  said :  "If  the  money  was  payable  on  some  day  subsequent  to  the  abandon- 
ment of  the  procession,  I  do  not  think  it  could  have  been  sued  for.  If,  how- 
ever, it  was  payable  prior  to  the  abandonment  of  the  procession,  tie  position 
would  be  the  same  as  if  it  had  been  actually  paid  and  could  not  be  recovered 
back  and  it  could  be  sued  for.  All  Taylor  v.  Caldwell  says  is  that  the  parties 
are  to  be  excused  from  the  performance  of  the  contract,  and  Appleby  v.  Myers 
says  from  the  further  performance.  It  is  impossible  to  import  a  condition  in- 
to a  contract  which  the  parties  could  have  imported  and  have  not  done  so.  All 
that  can  be  said  is  that,  when  the  procession  was  abandoned,  the  contract 
was  off,  not  that  anything  done  under  the  contract  was  void.    The  loss  must 


246      BENEFITS  UNDER  CONTRACT  PARTIALLY  PERFORMED    (Ch.  3 

sage  the  learned  judge  supports  what  I  have  already  said,  namely, 
that,  where  the  doctrine  of  Taylor  v.  Caldwell,  3  B.  &  S.  826,  and 
Appleby  v.  Myers,  L.  R.  2  C.  P.  651,  applies,  the  result  is  that  the  law 
leaves  the  parties  where  they  were  when  the  further  performance  of 
the  contract  became  impossible.  It  treats  the  contract  as  a  good  and 
subsisting  contract  with  regard  to  things  done  and  rights  accrued  in  ac- 
cordance with  it  up  to  that  time ;  but,  as  the  basis  of  the  contract  has 
failed,  it  excuses  the  parties  from  further  responsibility  under  it.  For 
these  reasons  I  think  the  judgment  was  right  as  to  the  claim,  but 
wrong  as  to  the  counter-claim.  The  appeal  must  therefore  be  allowed 
and  the  cross-appeal  disallowed. 


II.   By   PLAINTlIf? 

HOLLIDAY  V.  COE. 

(Supreme  Court  of  Judicature  of  Indiana,  1851.    3  Ind.  26.) 

Error  to  the  Fountain  Circuit  Court. 

Blackford,  J.  This  was  an  action  of  assumpsit  brought  by  Coc 
against  Holliday.  Plea,  the  general  issue.  The  cause  was  submitted 
to  a  jury.  Verdict  for  the  plaintiff  for  $222.  Motion  for  a  new  trial 
overruled,  and  judgment  on  the  verdict. 

The  declaration,  originally,  contained  six  counts.  Two  of  them 
were  adjudged,  on  general  demurrer,  to  be  bad,  and  need  be  no  fur- 
ther noticed.  The  remaining  counts  are  general  ones  for  work  and 
labor,  and  for  money  paid. 

The  facts  are  as  follows: 

In  1846,  the  plaintiff,  Coe,  undertook  to  transport,  for  Holliday,  the 
defendant,  a  certain  quantity  of  corn  from  Fountain  county,  in  this 
state,  to  New  Orleans,  in  Louisiana.  The  following  bill  of  lading 
shows  the  contract  between  the  parties: 

"Covington,  Fountain  county,  la.,  May  15th,  1846.  Shipped  by 
Daniel  T.  Holliday,  in  good  order  and  condition,  on  board  the  good 
flatboat  called  the  Queen-City,  No.  3,  whereof  Milburn  Coe  is  owner, 
and  Samuel  Welch  is  pilot,  for  the  present  voyage,  now  lying  in  the 
port  of  Covington  and  bound  for  New  Orleans,  the  following  property 
marked  and  consigned  as  below,  which  is  to  be  delivered  without  de- 
lay, in  like  good  order,  at  the  port  aforesaid,  the  unavoidable  dangers 
of  the  river  navigation  or  fire  excepted,  unto  M.  R.  or  A.  S.  Holliday, 

remain  where  it  was  at  the  time  of  the  abandonment.  It  is  lil^e  the  case  of  a 
charter  party  where  the  freight  is  payable  in  advance,  and  the  voyage  is  not 
completed,  and  the  freight  therefore  not  earned.  Where  the  non-couipletiou 
arose  through  impossibility  of  performance  the  freight  could  not  be  recovered 
back.  Of  course,  if  the  contract  for  seats  had  been  made  subsequent  to  the 
abandonment  of  the  procession,  that  would  be  different  altogether.  There 
the  money  could  be  recovered." 


Sec.  1)  FURTHER   PERFORMANCE   IMPOSSIBLE  247 

or  to  his  or  their  assigns,  he  or  tliey  paying  freight  for  the  said  prop- 
erty at  the  rate  of  sixteen  cents  per  bushel. 

"In  witness  whereof,  the  owner  of  said  boat  has  affirmed  to  three 
bills  of  lading  of  this  tenor  and  date,  one  of  which  being  accomplished, 
the  others  to  stand  void. 

"On  account  of  D.  T.  Holliday,  Covington,  la.,  Property,  3,771  bush- 
els of  corn  in  the  ear,  at  16  cents,  $603.36.  Consignees,  M.  R.  or  A. 
S,  Holliday. 

"Received  on  the  above  ft.  of  D.  T.  Holliday,  $75.64.  (Bal.)  $527.- 
72.     [Signed]     Milburn  Coe." 

The  defendant's  advance  of  $75.64,  mentioned  above,  was  to  pay 
incidental  expenses,  such  as  the  expense  of  a  protest  should  one  be 
necessary.    The  defendant  had  the  corn  insured  at  20  cents  a  bushel. 

The  plaintiff,  in  pursuance  of  his  contract  contained  in  the  bill  of 
lading,  proceeded  on  the  voyage  with  his  boat  and  the  aforesaid  cargo, 
until  the  boat,  when  within  about  250  miles  of  New  Orleans,  sunk,  and 
the  whole  cargo  was  lost.  Immediately  after  the  loss,  the  plaintiff 
went  to  New  Orleans,  and  procured,  at  an  expense  of  about  fifteen 
dollars,  a  protest  of  the  boat.  Afterwards,  the  defendant  told  one  of 
the  witnesses  he  would  pay  the  plaintiff  a  part  of  the  freight,  but  the 
plaintiff  was  not  then  present,  nor  did  the  witness  understand  the 
defendant  as  contracting  to  make  such  payment.  The  insurance  on 
the  corn  was  paid  by  the  insurers. 

These  facts  do  not,  in  our  opinion,  support  the  verdict  for  the  plain- 
tiff. The  claim  of  the  plaintiff,  under  the  counts  for  work  and  labor, 
is  for  freight  in  transporting  the  corn  under  the  contract  between  the 
parties,  as  evidenced  by  the  bill  of  lading.  But  it  is  very  clear  that 
the  plaintiff  has  no  ground  for  the  recovery  of  freight.  The  answer 
to  his  claim  for  freight  is,  that  the  corn  was  not  delivered  by  him  at 
New  Orleans;  his  delivery  of  it  there  being  a  precedent  condition  to  be 
performed  by  him.  The  sinking  of  the  boat  and  consequent  loss  of  the 
cargo,  before  the  arrival  at  the  place  of  destination,  show  that  no 
freight  is  recoverable  in  this  case.  The  circumstance  that  the  plaintiff 
performed  a  part  of  the  voyage,  and  that  the  loss  occurred  without  any 
fault  on  his  part,  does  not  authorize  the  verdict.  There  are  no  doubt 
cases  where  freight  must  be  paid,  pro  rata  itineris.  Thoses  cases  are 
where  the  vessel  has  performed  the  whole  voyage,  and  brought  only  a 
part  of  her  cargo  to  the  place  of  destination ;  or  where  the  vessel  has 
not  performed  her  whole  voyage,  and  the  goods  have  been  delivered 
to  the  merchant  at  a  place  short  of  the  place  of  delivery.  The  case 
before  us  does  not  come  within  either  of  those  classes.  Here  was  an 
entire  loss  of  the  cargo  where  the  boat  was  sunk,  and,  of  course,  the 
case  is  not  one  where  freight  can  be  recovered  according  to  the  pro- 
portion of  the  voyage  performed.    3  Kent's  Comm.  219,  227. 

There  was  no  evidence  to  support  the  count  for  money  paid.  It 
is  true  that  the  plaintiff  paid  a  small  sum  for  the  protest  at  New 
Orleans,  but  the  evidence  shows  that  he  was  bound  to  pay  that  out  of 


248      BENEFITS  UNDER  CONTRACT  PARTIALLY  PERFORMED    (Ch.  3 

the  money  which  has  been  advanced  to  him,  on  the  freight  by  the 
defendant. 

The  evidence  of  the  defendant's  statement  after  the  loss,  that  he 
w^ould  pay  part  of  the  freight,  vi^as  made  to  a  stranger,  in  the  plain- 
tiff's absence,  and  the  defendant  was  not  understood  as  contracting  to 
make  such  payment.    That  evidence  does  not  support  this  suit. 

Pbr  Curiam,  The  judgment  is  reversed  and  the  verdict  set  aside 
with  costs.    Cause  remanded,  &c.^*  , 

i«  "The  contract  for  the  conveyance  of  merchandise  is  In  its  nature  an  entire 
contract,  and  unless  it  be  completely  performed  by  the  delivery  of  the  goods 
at  the  place  of  destination,  the  merchant  will  in  general  derive  no  benefit  from 
the  time  and  labour  expended  in  a  partial  conveyance,  and  consequently  he 
subject  to  no  payment  whatever,  although  the  ship  may  have  been  hired  by 
the  month  or  week.  The  cases  in  which  a  partial  payment  may  be  claimed, 
are  exceptions  to  the  general  rule,  foimded  upon  principles  of  equity  and  jus- 
tice, as  applicable  to  particular  circumstances."  Abbott  on  Shipping  (14th 
Ed.)  p.  657. 

Among  such  exceptional  situations  are  the  following:  Pro  rata  freight 
may  be  recovered  where  a  part  of  the  goods  shipped  have  been  delivered,  but 
the  shipper  may  recoup  any  damages  suffered  by  reason  of  failure  to  carry 
or  deliver  the  rest  of  the  cargo  or  consignment  Taylor  v.  The  Marcella  (1873) 
1  Woods,  302,  Fed.  Cas.  No.  13,797;  Edward  Hines  Lumber  Co.  v.  Chamber- 
lain (1902)  118  Fed.  716,  55  C.  C.  A.  236.  So,  also,  pro  rata  freight  may  be  re- 
covered if  the  owner  voluntarily  takes  his  goods  at  an  intermediate  port. 
Robinson  v.  Marine  Insurance  Co.  (1S07)  2  Johns.  (N.  Y.)  323;  British  &  For- 
eign Marine  Insurance  Co.  v.  Southern  Pacific  Co.  (D.  C.  1893)  55  Fed.  82. 
But  if  the  master  refuses  to  transport  the  goods  to  their  destination,  the  own- 
er who  retakes  them  at  the  intenuediate  port  is  not  liable  for  pro  rata  freight 
as  such  a  taking  by  the  owner  is  not  deemed  voluntary,  but  compulsory.  Ad- 
ams V.  Haught  (1855)  14  Tex.  243 ;  Welch  v.  Hicks  (1826)  6  Cow.  (N.  Y.)  505, 
16  Am.  Dec.  443.  No  pro  rata  freight  can  be  recovered  if  the  goods  are 
brought  back  to  the  port  from  which  they  started,  because  of  damage  to  the 
vessel.  Lord  v.  Neptune  Ins.  Co.  (1857)  10  Gray  (Mass.)  109.  Nor  if  the  goods 
are  brought  back  because  of  a  blockade  of  the  port  of  destination.  Scott  v. 
Libby  (1807)  2  Johns.  (N.  Y.)  336,  3  Am.  Dec.  431.  If  the  owner  takes  posses- 
sion of  the  goods  short  of  their  destination,  the  carrier  not  being  in  default, 
full  freight  is  due.  Braithwaite  v.  Power  et  al,  (1891)  1  N.  D.  455,  48  N.  W. 
354.  An  agreement  that  full  freight  should  be  paid,  whether  or  not  the  goods 
reach  their  destination,  is  valid  and  enforceable.  The  Queensmore  (1893)  53 
Fed.  1022,  4  C.  C.  A.  157;  I'ortland  Flouring  Mills  Co.  v.  British  &  Foreign 
Marine  Insurance  Co.  (1904)  130  Fed.  860,  65  C.  C.  A.  344. 

Freight  the  Mother  of  Wages. — A  seaman's  right  to  recover  wages  was 
dependent  upon  the  earning  of  freight  by  the  vessel  on  which  he  shipped. 
Thus  if  the  vessel  was  lost  or  captured  before  the  termination  of  the  voyage 
no  right  to  wages  accrued.  Abernethy  v.  Landale  (1780)  2  Doug.  539.  See, 
also.  Anonymous  (1683)  2  Show.  283,  page  233,  supra. 

By  statute  a  seaman  may  now  recover  pro  rata  wages  in  such  case.  57  & 
58  Vict.  c.  60,  §  158;  Rev.  St.  U.  S.  §§  4525,  4526  (U.  S.  Comp.  St  1913,  §§ 
8316,  8317).  ("No  right  to  wages  shall  be  dependent  on  the  earning  of  freight 
by  the  vessel.") 


Sec.  1)  FURTHER  PERFORMANCE  IMPOSSIBLE  249 

CUTTER  V.  POWELL. 
(Court  of  King's  Bench,  1795.    6  Term  R.  [Dumford  &  East]  320.) 

To  assumpsit  for  work  and  labour  done  by  the  intestate,  the  de- 
fendant pleaded  the  general  issue.  And  at  the  trial  at  Lancaster  the  ju- 
ry found  a  verdict  for  the  plaintiff  for  i3L  10s.  subject  to  the  opin- 
ion of  this  Court  on  the  following  case: 

The  defendant  being  at  Jamaica  subscribed  and  delivered  to  T.  Cut- 
ter the  intestate  a  note,  whereof  the  following  is  a  copy;  "Ten  days 
after  the  ship  'Governor  Parry,'  myself  master,  arrives  at  Liverpool, 
I  promise  to  pay  to  Mr.  T.  Cutter  the  sum  of  thirty  guineas,  provided 
he  proceeds,  continues  and  does  his  duty  as  second  mate  in  the  said 
ship  from  hence  to  the  port  of  Liverpool.  Kingston,  July  31st,  1793." 
The  ship  "Governor  Parry"  sailed  from  Kingston  on  the  2d  of  Au- 
gust, 1793,  and  arrived  in  the  port  of  Liverpool  on  the  9th  of  October 
following.  T.  Cutter  went  on  board  the  ship  on  the  31st  of  July, 
1793,  and  sailed  in  her  on  the  2d  day  of  August,  and  proceeded,  con- 
tinued and  did  his  duty  as  second  mate  in  her  from  Kingston  until 
his  death,  which  happened  on  the  20th  of  September  following,  and 
before  the  ship's  arrival  in  the  port  of  Liverpool.  The  usual  wages 
of  a  second  mate  of  a  ship  on  such  a  voyage,  when  shipped  by  the 
month  out  and  home  is  £4.  per  month:  but  when  seamen  are  shipped 
by  the  run  from  Jamaica  to  England,  a  gross  sum  is  usually  given. 
The  usual  length  of  a  voyage  from  Jamaica  to  Liverpool  is  about 
eight  weeks. 

This  was  argued  last  term  by  J.  Haywood  for  the  plaintiff;  but 
the  Court  desired  the  case  to  stand  over,  that  inquiries  might  be  made 
relative  to  the  usage  in  the  commercial  world  on  these  kinds  of  agree- 
ments. It  now  appeared  that  there  was  no  fixed  settled  usage  one  way 
or  the  other:  but  several  instances  were  mentioned  as  having  hap- 
pened within  these  two  years,  in  some  of  which  the  merchants  had 
paid  the  whole  wages  under  circumstances  similar  to  the  present,  and 
in  others  a  proportionable  part.    The  case  was  now  again  argued. 

Lord  Kenyon,  Ch.  J.^*  I  should  be  extremely  sorry  that  in  the 
decision  of  this  case  we  should  determine  against  what  had  been  the 
received  opinion  in  the  mercantile  world  on  contracts  of  this  kind,  be- 
cause it  is  of  great  importance  that  the  laws  by  which  the  contracts 
of  so  numerous  and  so  useful  body  of  men  as  the  sailors  are  sup- 
posed to  be  guided  should  not  be  overturned.  Whether  these  kind  of 
notes  are  much  in  use  among  the  seamen,  we  are  not  sufficiently  in- 
formed; and  the  instances  now  stated  to  us  from  Liverpool  are  too 
recent  to  form  any  thing  like  usage.  But  it  seems  to  me  at  present 
that  the  decision  of  this  case  may  proceed  on  the  particular  words  of 
this  contract  and  the  precise  facts  here  stated,  without  touching  ma- 

»*  The  concurring  opinions  of  Grose  and  Lawrence,  JJ.,  are  omitted. 


250  BENEFITS   UNDER   CONTRACT   PARTIALLY   PERFORMED  (Ch.  3 

rine  contracts  in  general.  That  where  the  parties  have  come  to  an 
express  contract  none  can  be  impHed  has  prevailed  so  long  as  to  be 
reduced  to  an  axiom  in  the  law.  Here  the  defendant  expressly 
promised  to  pay  the  intestate  thirty  guineas,  provided  he  proceeded, 
continued  and  did  his  duty  as  second  mate  in  the  ship  from  Jamaica 
to  Liverpool ;  and  the  accompanying  circumstances  disclosed  in  the 
case  are  that  the  common  rate  of  wages  is  four  pounds  per  month, 
when  the  party  is  paid  in  proportion  to  the  time  he  serves:  and  that 
this  voyage  is  generally  performed  in  two  months.  Therefore  if  there 
had  been  no  contract  between  these  parties,  all  that  the  intestate  could 
have  recovered  on  a  quantum  meruit  for  the  voyage  would  have  been 
£S. ;  whereas  here  the  defendant  contracted  to  pay  thirty  guineas  pro- 
vided the  mate  continued  to  do  his  duty  as  mate  during  the  whole 
voyage,  in  which  case  the  latter  would  have  received  nearly  four  times 
as  much  as  if  he  were  paid  for  the  number  of  months  he  served.  He 
stipulated  to  receive  the  larger  sum  if  the  whole  duty  were  performed, 
and  nothing  unless  the  whole  of  that  duty  were  performed:  it  was  a 
kind  of  insurance.  On  this  particular  contract  my  opinion  is  formed 
at  present;  at  the  same  time  I  must  say  that  if  we  were  assured  that 
these  notes  are  in  universal  use,  and  that  the  commercial  world  have 
received  and  acted  upon  them  in  a  different  sense,  I  should  give  up 
my  own  opinion. 

AsHHURST,  J.  We  cannot  collect  that  there  is  any  custom  prevail- 
ing among  merchants  on  these  contracts ;  and  therefore  we  have 
nothing  to  guide  us  but  the  terms  of  the  contract  itself.  This  is  a  writ- 
ten contract,  and  it  speaks  for  itself.  And  as  it  is  entire,  and  as  the 
defendant's  promise  depends  on  a  condition  precedent  to  be  perform- 
ed by  the  other  party,  the  condition  must  be  performed  before  the 
other  party  is  entitled  to  receive  any  thing  under  it.  It  has  been  argued 
however  that  the  plaintiff  may  now  recover  on  a  quantum  meruit:  but 
she  has  no  right  to  desert  the  agreement ;  for  wherever  there  is  an  ex- 
press contract  the  parties  must  be  guided  by  it ;  and  one  party  cannot 
relinquish  or  abide  by  it  as  it  may  suit  his  advantage.  Here  the 
intestate  was  by  the  terms  of  his  contract  to  perform  a  given  duty 
before  he  could  call -upon  the  defendant  to  pay  him  anything;  it  was 
a  condition  precedent,  without  performing  which  the  defendant  is 
not  liable.  And  that  seems  to  me  to  conclude  the  question :  the  intes- 
tate did  not  perform  the  contract  on  his  part;  he  was  not  indeed  to 
blame  for  not  doing  it ;  but  still  as  this  was  a  condition  precedent, 
and  as  he  did  not  perform  it,  his  representative  is  not  entitled  to  re- 
cover. 

Postea  to  the  defendant,  unless  some  other  information  relative  to 
the  usage  in  cases  of  this  kind  should  be  laid  before  the  court  before 
the  end  of  this  term ;  but  the  case  was  not  mentioned  again.^"* 

IB  In  Appleby  v.  Dods  (1807)  8  East,  300,  the  plaintifC,  a  sailor,  shipped  on 
board  the  defendant's  ship  from  London  for  Madeira,  the  West  Indies,  and 
return.    The   vessel  was  lost  on  the  return  voyage  from  the  "West  Indies. 


Sec.  1)  FURTHER  PERFORMANCE   IMPOSSIBLE  251 

WOLFE  V.  HOWES. 

(Court  of  Appeals  of  New  York,  1859.    20  N.  Y.  197,  75  Am.  Dec.  388.) 

Appeal  from  the  Supreme  Court.  The  complaint  contained  the  com- 
mon counts  only  for  work,  labor  and  services  done  by  Nicholas 
Vache,  the  testator,  for  the  defendants.  The  defendants  denied  the 
facts  averred  in  the  complaint,  and  set  up  as  a  separate  defence 
that  the  work  was  done  under  a  special  contract  not  performed  by 
Vache  in  his  lifetime,  and  claimed  damages  for  the  breach  of  the  con- 
tract on  his  part.  The  defendants  had  for  nine  years  previous  to 
May,  1852,  been  engaged  as  partners  in  carrying  on  the  business  of 
making  glass  at  the  Dunbarton  glass-works,  of  which  they  were  the 
proprietors,  at  Verona  in  the  county  of  Oneida.  The  testator  was  in 
the  employment  of  the  defendants  at  their  glass-works  as  a  pot-maker. 
On  the  1st  of  May,  1852,  the  defendants  and  testator  entered  into  a 
contract  in  writing  as  follows: 

"Memorandum  of  an  agreement  made  this  day.  Howes,  Scofield 
&  Co.  [defendants],  of  the  first  part,  and  Nicholas  Vache  of  the  second 
part,  witnesseth.  That  for  and  in  consideration  of  $1  to  me  in  hand 
paid,  the  receipt  whereof  I  do  acknowledge,  do  agree  on  my  part  to 
do  all  the  pot-room  work  for  said  parties  of  the  first  part,  in  a  good 
and  workmanlike  manner,  for  one  year  from  the  date  of  this  contract, 
at  the  price  of  $40  per  month,  $10  of  which  is  to  be  paid  me  monthly. 
Dunbarton,  May  1st,  1852.  If  extra  help  is  needed,  we  agree  to  fur- 
nish it.  [Signed]     Nicholas  Vache." 

The  trial  was  before  a  referee,  who  found  the  following  facts: 
The  plaintiff's  testator  entered  upon  the  performance  of  the  contract, 
and  continued  to  fulfill  it  in  all  respects  according  to  the  terms  there- 
of, in  a  good  and  workmanlike  manner  from  the  1st  day  of  May,  1852, 
to  the  7th  day  of  December,  following,  when  Vache  became  sick  and 
unwell,  and  so  continued  for  a  long  time,  and  at  length  died.  By  rea- 
son of  his  said  sickness,  and  without  fault  on  his  part,  he  became  and 
was  incapable  of  further  performance  of  his  said  contract. 

Plaintiff  brought  assumpsit  for  wages,  claiming  that  since  the  voyage  was 
divided  into  three  parts,  first  to  Madeira,  next  to  the  West  Indies,  and  then 
home,  and  since  freight,  which  is  called  the  mother  of  wages,  had  thus  been 
earned  in  the  two  first  stages  of  the  voyage,  he  was  entitled  to  recover  his 
wages  up  to  the  time  the  ship  sailed  for  home  from  the  West  Indies,  but  the 
court  denied  all  recovery  and  gave  judgment  for  the  defendant;  Lord  Ellen- 
borough,  C.  J.,  saying:  "The  terms  of  the  contract  in  question  are  quite  clear 
and  reasonable;  they  relate  to  a  voyage  out  to  Madeira  and  any  of  the  West 
India  Islands,  and  to  return  to  London ;  and  there  is  an  express  stipulation 
"that  no  seaman  shall  demand  or  be  entitled  to  his  wages,  or  any  part  there- 
of, until  the  arrival  of  the  ship  at  the  above-mentioned  port  of  discharge," 
&c.,  which  must  refer  to  London.  And  though  the  reason  of  this  stipuation 
was,  no  doubt,  to  oblige  the  mariners  to  return  home  with  the  ship,  and  not 
to  desert  her  in  the  West  Indies;  yet  the  terms  of  it  are  general,  and  include 
the  present  case :  and  we  cannot  say,  against  tlie  express  contract  of  tlie 
parties,  that  the  seamen  shall  recover  pro  rata,  although  the  ship  never  did 
reach  her  port  of  discharge  named." 


252  BENEFITS^  UNDER  CONTRACT   PARTIALLY   PERFORMED         (Ch.  3 

He  held  as  matter  of  law,  that  by  reason  of  his  sickness  and  death, 
Vache  was  released  and  discharged  from  the  further  performance 
of  his  contract,  and  his  executor  was  entitled  to  recover  a  reasonable 
compensation  for  the  services  of  his  testator. 

That  such  reasonable  compensation  was  the  sum  of  $40  per  month, 
for  the  time  of  the  testator's  service;  and  after  deducting  certain 
payments  made  to  him  from  time  to  time,  there  was  a  balance  due  of 
$159.28,  for  which  he  ordered  judgment  with  costs.  The  defendants 
took  several  exceptions  to  the  finding  of  the  facts  and  the  decisions 
of  the  referee  on  the  questions  of  law,  and  particularly  to  the  con- 
clusion that  Vache  was  released  and  discharged  from  further  perform- 
ance of  the  contract,  and  that  the  plaintiff  was  entitled  to  recover 
a  reasonable  compensation  for  the  services  rendered  by  his  testator 
for  the  defendants,  and  in  not  allowing  a  sufficient  amount  of  set-off. 
The  Supreme  Court,  at  general  term  in  the  fifth  district,  having  af- 
firmed the  judgment  entered  on  the  report  of  the  referee,  the  defend- 
ants appealed  to  this  court. 

Allen,  J.  There  can  be  little  doubt,  I  think,  that  the  contract  with 
Vache  contemplated  his  personal  services.  This  is  evident,  both  from 
the  nature  of  the  business  and  the  amount  of  compensation  agreed  to 
be  paid  him.  It  is  also  manifest  from  the  evidence  on  both  sides. 
The  business  of  pot-making  required  skill  and  experience.  It  was  an 
art  to  be  acquired  after  much  study  and  labor,  and  which  Vache  seemed 
to  have  accomplished.  The  execution  of  the  work  required  his  con- 
stant and  personal  supervision  and  labor.  No  common  laborer  could 
have  supplied  his  place,  and  hence  the  amount  of  his  wages  was  large- 
ly increased  beyond  that  of  such  a  hand.  The  extra  help  mentioned 
in  the  contract  had  reference  to  the  breaking  away  of  the  flattening,  so 
called,  and  to  its  repair,  and  nothing  else.  The  whole  testimony  shows 
this,  as  well  as  that  the  personal  services  of  Vache  were  contracted 
for.  The  referee,  therefore,  well  found  and  the  court  below  well  de- 
cided that  such  were  the  terms  of  the  contract. 

2.  The  question  is  then  presented  whether  the  executor  of  a  me- 
chanic, who  has  contracted  to  work  for  a  definite  period,  and  who 
enters  upon  his  labors  under  the  contract,  and  continues  in  its  faith- 
ful performance  for  a  portion  of  the  time,  until  prevented  by  sickness 
and  death,  and  without  any  fault  on  his  part,  from  its  final  comple- 
tion, can  recover  for  the  work  and  services  thus  performed  by  his 
testator. 

The  broad  ground  is  taken  on  the  part  of  the  defendants'  counsel, 
that  no  recovery  can  be  had  under  such  circumstances ;  that  full  per- 
formance was  a  condition  precedent  to  the  right  of  recovery,  the 
agreement  being  general  and  absolute  in  its  terms,  and  not  providing 
for  the  contingency  of  sickness  or  death. 

It  has  undoubtedly  been  long  settled  as  a  general  principle,  both  in 
England  and  in  this  as  well  as  in  most  the  other  States,  that  where 


Sec.  1)  FURTHER  PERFORMANCE  IMPOSSIBLE  253 

the  contract  is  entire,  nothing  but  the  default  of  the  defendants  will 
excuse  performance.  It  will  be  found,  however,  on  an  examination  of 
the  leading  cases  in  our  own  courts,  that  the  failure  to  perform  was 
owing  to  the  fault  or  negligence  of  the  party  seeking  to  recover.  Mc- 
Millan V.  Vanderlip,  12  Johns.  165,  7  Am.  Dec.  299;  Reab  v.  Moor,  19 
Johns.  337 ;  Jennings  v.  Camp,  13  Johns.  94,  7  Am.  Dec.  367 ;  Webb 
V.  Duckingfield,  13  Johns.  390,  7  Am.  Dec.  388;  Sickels  v.  Pattison, 
14  Wend.  257,  28  Am.  Dec.  527;  Lantry  v.  Parks,  8  Cow.  63,  and 
various  other  cases.  It  is  believed  that  not  a  single  case  can  be  found 
where  the  rule  is  laid  down  with  such  strictness  and  severity  as  the 
defendants'  counsel  asks  for  in  the  present  Case. 

Some  of  the  EngHsh  cases  do  indeed  rather  intimate  such  a  doctrine. 
Cutter  V.  Powell,  6  T.  R.  320 ;  8  id.  267 ;  Appleby  v.  Dods,  8  East, 
300;  Hulle  v.  Heightman,  2  id.  145,  and  some  others.  These  cases 
are,  however,  capable  of  the  same  reasonable  construction  which  the 
law  confers  upon  all  contracts.  That  of  Cutter  v.  Powell  is  distin- 
guishable in  this,  that  by  the  peculiar  wording  of  the  contract  it  was 
converted  into  a  wagering  agreement,  by  which  the  party,  in  consid- 
eration of  an  unusually  high  rate  of  wages,  undertook  to  insure  his 
own  life  and  to  render  at  all  hazards  his  personal  services  during  the 
voyage,  before  the  completion  of  which  he  died. 

The  great  principle  upon  which  the  adjudged  cases  in  all  the  courts 
is  based  is  the  question,  as  stated  in  McMillan  v.  Vanderlip,  already 
cited.  What  was  the  real  intention  of  the  parties?  The  law  gives  a 
reasonable  construction  to  all  contracts.  For  instance,  in  the  present 
case,  did  the  parties  intend  that  the  contract  should  be  binding  upon 
the  plaintiff's  testator  in  case  of  unavoidable  sickness  or  death ;  or  did 
they  intend,  and  is  it  to  be  implied,  that  each  should  perform,  as  to 
the  other,  according  to  the  terms  of  the  contract,  Deo  volente  ?  It  ap- 
pears that  a  fair  and  legal  interpretation  would  answer  this  question 
in  the  affirmative,  and  that  such  a  provision  must  be  understood  as 
written  in  the  contract.  Nor  is  this  principle  wanting  sanction  either 
by  elementary  writers  or  adjudged  cases.  "Where  the  performance 
of  a  condition  is  prevented  by  the  act  of  God,  it  is  excused."  Cruise's 
Dig.,  Condition,  41,  43;  3  Kent's  Com.  471;  2  id.  509;  8  Bing.  231. 
In  Mounsey  v.  Drake,  10  Johns.  27,  29,  the  court  say :  "Performance 
must  be  shown,  unless  prevented  by  the  act  of  God,  or  of  the  law."  1 
Shep.  Touchstone,  180;  Gilbert  on  Covenants,  472;  People  v.  Man- 
ning, 8  Cow.  297,  18  Am.  Dec.  451;  People  v.  Rartlett,  3  Hill,  570; 
Carpenter  v.  Stevens,  12  Wend.  590;  Chit,  on  Cont.  631;  1  Pars,  on 
Cont.  524,  and  note;  Fenton  v.  Clark,  11  Vt.  562;  Fuller  v.  Brown, 
11  Mete.  (Mass.)  440. 

There  is  good  reason  for  the  distinction  which  seems  to  obtain  in 
all  the  cases,  between  the  case  of  a  willful  or  negligent  violation  of  a 
contract  and  that  where  one  is  prevented  by  the  act  of  God.  In  tlie  one 
case,  the  application  of  the  rule  operates  as  a  punishment  to  the  per- 


254  BENEFITS   UNDER  CONTRACT  PARTIALLY  PERFORMED         (Ch.  3 

son  wantonly  guilty  of  the  breach,  and  tends  to  preserve  the  contract 
inviolable;  while,  in  the  other,  its  exception  is  calculated  to  protect 
the  rights  of  the  unfortunate  and  honest  man  who  is  providentially 
and  without  fault  on  his  part  prevented  from  a  full  performance. 

There  is  another  reason  for  relaxing  the  rule,  which  is  applicable 
to  the  case  we  are  now  considering.  It  is  well  set  forth  in  Story  on 
Bailments,  §  36,  and  notes,  where  that  learned  jurist,  after  considering 
the  great  number  of  cases  on  this  subject  in  the  various  courts  of  Eng- 
land and  this  country,  and  well  observing  that  they  are  not  at  all 
times  in  harmony,  remarks  that  the  true  rule  may  be  considered  to 
be,  "that  where  the  contract  is  for  personal  services  which  none  but 
the  promisor  can  perform,  there  inevitable  accident  or  the  act  of  God 
will  excuse  the  non-performance,  and  enable  the  party  to  recover  upon 
a  quantum  meruit.  But  where  the  thing  to  be  done  or  work  to  be  per- 
formed may  be  done  by  another  person,  then  all  accidents  are  at  the 
risk  of  the  promisor."  In  the  present  case  the  finding  shows,  and  I 
have  already  remarked,  justly,  that  the  contract  was  personal,  and 
that  the  executor  could  not  have  employed  a  third  person  to  execute  the 
contract  on  the  part  of  his  testator  Vache. 

But  without  pressing  this  point  further,  it  is  sufficient  to  say  that  it 
was  virtually  decided  against  the  defendants  by  this  court  in  the  case 
of  Jones  v.  Judd,  4  N.  Y.  411.  It  was  there  decided  that  when,  by  the 
terms  of  the  contract  for  work  and  labor,  the  full  price  is  not  to  be 
paid  until  the  completion  of  the  work,  and  that  becomes  impossible 
by  the  act  of  the  law,  the  contractor  is  entitled  to  recover  for  the 
amount  of  his  labor.  In  that  case  the  work  was  stopped  by  the  State 
officers  in  obedience  to  an  act  of  tlie  Legislature  suspending  the  work ; 
and  the  court  held  that  as  the  contractor  was  without  fault,  he  was 
entitled  to  recover.  The  case  in  10  Johns.  27,  before  cited,  was  re- 
ferred to  and  approved  of  as  authority  in  favor  of  the  position;  and 
see  Beebe  v.  Johnson,  19  Wend.  502,  32  Am.  Dec.  518. 

The  conclusion,  then,  is,  that  where  the  performance  of  work  and 
labor  is  a  condition  precedent  to  entitle  the  party  to  recover  a  fulfill- 
ment must  be  shown ;  yet  that  where  performance  is  prevented  or  ren- 
dered impossible  by  the  sickness  or  death  of  the  party,  a  recovery  may 
be  had  for  the  labor  actually  done.  This  is  not  out  of  harmony  with 
principle  or  adjudged  cases,  and  is  certainly  in  harmony  with  the  rules 
of  common  honesty  and  strict  justice. 

These  views  dispose  of  the  main  questions  in  the  case.  It  is  neces- 
sary to  notice  one  or  two  of  minor  importance. 

It  is  insisted  that  if  sickness  were  an  excuse  for  the  non-performance 
of  the  contract  on  the  part  of  Vache,  that  such  excuse  should  have  been 
alleged  in  the  complaint,  and  this  not  having  been  done,  that  the  plain- 
tiff is  not  entitled  to  recover.  It  is  true  that  the  plaintiff  might  have 
set  up  the  agreement  and  the  excuse  for  its  nonperformance,  and  en- 
titled himself  to  recover  upon  such  a  pleading.    But  the  complaint  pro- 


Sec.  1)  FURTHER  PERFORMANCE  IMPOSSIBLE  255 

ceeds  upon  a  quantum  meruit;  and  upon  showing  the  work  and  labor 
of  Vache  the  plaintiff  entitled  himself  to  recover.  The  defendants 
set  up  the  special  agreement  as  matter  of  defense,  and  the  plaintiff's 
excuse  was  properly  enough  matter  of  reply.  The  contract  was  in  fact 
discharged  by  the  act  of  God,  and  its  chief  consequence  was  to  measure 
the  amount  of  the  plaintiff's  damages,  or  to  regulate  the  compensation 
to  which  the  plaintiff  was  entitled,  though  his  remedy  was  as  upon  a 
quantum  meruit.     So  say  some  of  the  cases  already  cited. 

Again,  it  is  said  that  if  the  plaintiff  was  entitled  to  recover  any  thing, 
it  could  be  only  $10  a  month,  and  that  the  defendants'  set-off  having 
been  found  by  the  referee  to  amount  to  more  than  that,  the  defendants 
were  entitled  to  judgment.  This  objection  is  not  tenable.  The  com- 
pensation was  to  be  at  the  rate  of  $40  per  month;  $10  (a  part)  of 
which  was  to  be  paid  monthly.  This  was  upon  the  supposition  that 
the  contract  was  to  be  performed  for  the  whole  time.  This,  however, 
having  been  rendered  impossible,  tlie  plaintiff  was  entitled  to  recover, 
if  any  thing,  the  full  value  of  the  services  of  the  testator,  not  exceed- 
ing the  rate  of  compensation  secured  by  the  terms  of  the  contract. 

It  is  further  urged  that  the  referee  erred  in  not  allowing  defendants' 
damages  accruing  to  them  after  Vache  was  sick  and  before  he  quit. 
That  was  a  question  of  fact  entirely  for  the  referee.  He  found  that 
the  plaintiff  did  his  work  well  and  skillfully,  down  to  the  time  of  his 
sickness ;  he  allowed  and  deducted  the  whole  amount  of  set-off  proved 
by  defendants ;  and  he  does  not  find  that  the  defendants  sustained 
any  damages  by  reason  of  any  defect  in  Vache's  work  down  to  the 
time  of  his  quitting,  in  December,  1852.  With  these  questions  of  fact 
we  cannot  interfere.  The  court  below  sanctioned  the  finding.  I  think 
they  were  fully  warranted  in  so  doing.  At  all  events,  we  are  not 
at  liberty  to  interfere. 

The  judgment  must  be  affirmed.    Judgment  affirmed.** 

16  See,  to  the  same  effect,  Coe  v.  Smith  (1S53)  4  lud.  79,  58  Am.  Dec.  618, 
stated  at  length  in  McCammon  v.  Peck,  page  240.  supra. 

In  Lakeman  v.  Pollard  (1857)  43  Me.  4C3,  69  Am,  Dec.  77,  plaintiff  was 
hired  to  work  In  defendant's  mill  during  the  sawing  season,  but  quit  work 
owing  to  a  reasonable  fear  (as  the  Jury  found)  occasioned  by  an  epidemic  of 
cholera  in  the  vicinity.  Held  that  his  breach  of  his  contract  was  excusable 
and  that  he  might  therefore  recover  a  reasonable  compensation  for  the  labor 
performed  by  him. 

In  Walsh  v.  Fisher  (1899)  102  Wis.  172,  78  N,  W.  437,  43  L.  R.  A.  810,  72 
Am,  St.  Rep.  865,  plaintiff,  who  was  under  contract  to  work  for  defendant 
during  the  season,  after  part  performance  was  deterred  from  continuing  owing 
to  a  reasonable  fear  of  violence  from  strikers.  Held  that  he  might  recover 
"compensation  for  the  actual  benefit  conferred  upon  the  employer,  or,  as 
more  usually  expressed,  by  allowing  the  employee  the  value  of  his  services 
after  deducting  the  damages,  if  any,  suffered  by  the  employer  by  reason  of 
the  breach  of  the  entire  contract." 

In  Whitfield  v.  Zellnor  (1852)  24  Miss.  663,  plaintiff  having  contracted  with 
defendant  to  erect  a  mill  and  milldam  on  defendant's  laud,  was  prevented 
from  completing  his  contract  by  an  injunction  sued  out  by  a  third  party.  The 
court  held  that  plaintiff  was  excused  from  further  pertonuance  of  his  con- 
tract and  could  recover  for  the  value  of  the  work  done  by  him.  But  in  Sauer 
T.  School  District  of  McKees  Rocks  Borough  (1914)  243  Pa.  294,  90  AU.  150, 


256  BiSNEFITS   UNDER   CONTRACT   PARTIALLY   PERFORMED  (Cll.  3 

PATRICK  V.  PUTNAM. 
(Supreme  Court  of  Vermont,  1855.    27  Vt.  759.) 

Book  account  The  county  court,  March  Term,  1855,  Poland,  J., 
presiding,  rendered  judgment  upon  the  report  in  favor  of  the  plaintiflP 
for  the  amount  allowed  by  the  auditor,  to  which  the  defendant  ex-* 
cepted. 

Redfield,  Ch.  J."  The  only  question  made  in  the  present  case  is 
whether  a  person  contracting  to  labor  for  a  definite  term  and  who  fails 
to  fulfill  his  contract,  by  reason  of  sickness,  is  liable  to  have  the  amount 
of  his  recovery  reduced,  by  the  damages  sustained  by  the  employer, 
in  consequence  of  his  not  being  able  to  complete  the  full  term  of  serv- 
ice. 

It  is  certain  that  in  most  analogous  cases,  where  one  is  allowed 
to  recover  for  part  performance  of  an  entire  contract,  unless  hindered 
in  the  performance  of  his  contract,  by  the  other  party,  or  excused 
by  such  party,  he  is  liable  to  such  deduction.  He  is  allowed  to  recover 
only  what  his  services  have  benefited  tlie  other  party,  as  compared  with 
full  performance.  The  other  party  is  not  liable  to  divide  the  loss  sus- 
tained by  the  innocent  misfortune  even  of  the  plaintiff.  This  is  so  held 
in  the  case  of  clearing  land,  building  wall  and  other  erections,  upon  the 
land  of  the  employer,  as  decided  in  the  cases  cited  in  argument. 

So  too,  an  infant  even,  who  is  of  course  not  bound  to  full  perform- 
ance of  his  contract,  and  who  may  abandon  it,  at  any  time,  and  re- 
cover upon  a  quantum  meruit,  is  still  held  liable  to  have  deducted  from 
his  wages,  any  damages  his  employer  may  have  sustained,  in  conse- 
quence of  not  serving  the  full  term  stipulated.  Thomas  v.  Dike,  11 
Vt.  273,  34  Am.  Dec.  690,  and  subsequent  cases. 

The  English  rule,  at  the  present  day,  will  not  allow  a  recovery  in 
a  case  like  the  present.  The  rule,  in  regard  to  the  necessity  of  strict 
performance  of  such  a  contract  of  service,  was  first  relaxed,  in  this 
state,  in  the  case  of  Fenton  v.  Clark,  11  Vt.  557.  And  Bennett,  J.,  in 
the  opinion  in  that  case,  thus  explicitly  lays  down  the  ground,  upon 
which  the  recovery,  in  such  a  case,  should  be  had.  "It  is  not  the  ob- 
ject of  the  law  to  punish  the  party  for  a  violation  of  his  contract,  but 
to  make  the  other  party  good  for  all  damages  he  may  sustain,  by  such 
violation.     Common  justice  required  the  plaintiff  should  have  been 

It  was  held  that  action  would  lie  on  the  contract  In  such  case,  the  measure  of 
damages  being  the  contract  price  less  the  cost  of  completing  the  work. 

In  Jennings  v.  Lyons  (1876)  39  Wis.  553,  20  Am.  Rep.  57,  the  plaintiffs,  man 
and  wife,  contracted  with  defendant  to  render  services  for  one  year,  he  upon 
the  farm,  she  in  the  house.  Four  months  thereafter  the  wife  had  to  abandon 
her  work  in  anticipation  of  her  confinement  which  occurred  soon  after.  The 
court  denied  any  recovery  for  the  part  performance,  on  the  ground  that  the 
plaintiffs,  being  aware  of  the  impending  incapacity  of  the  wife  to  perform  her 
work,  should  have  provided  against  it  in  the  contract.  But  see  StoUe  v.  Stuart 
(1908)  21  S.  D.  &43,  114  N.  W.  1007. 

17  The  statement  of  facts  is  omitted. 


Sec.  1)  FURTHER   PERFOKMAXCE   IMrOSSIBLE  257 

allowed  to  recover  so  much  as  the  defendant  has  been  benefited  by  the 
labor,  after  deducting  any  damages  he  may  have  sustained  by  reason 
of  the  violation  of  the  contract." 

This  we  understand  to  have  been  the  sole  ground  upon  which  any 
relaxation  was  made  upon  this  subject.  And  although  I  have  always 
thought  the  strict  rule  of  tlie  English  law,  upon  the  subject  the  most 
salutary,  both  for  employers  and  employed,  inasmuch  as  it  removes 
all  temptation  to  make  f  eigTied  excuses,  and  speculation  upon  the  neces- 
sities of  others,  to  falsehood  and  dishonesty,  which  are  generally  a 
far  greater  loss  to  those  who  are  seduced  into  the  practice  of  them, 
than  to  those  who  are  the  objects' of  such  practices,  and  sooner  or 
later  are  likely  to  return  to  plague  the  inventors ;  still  I  have,  for 
the  reasons,  then  assigned,  become  somewhat  reconciled  to  the  appar- 
ent equit}'  of  the  rule  then  laid  down.  And  we  accordingly  so  de- 
cided a  case,  in  the  last  county,  upon  the  present  circuit,  which  seems 
to  have  been  in  principle,  precisely  like  the  present.  We  are  quite 
agreed  that  no  further  relaxation  is  allowable.  A  party  who  is  thus 
excused  from  the  performance  of  his  contract,  has  no  reason  to  com- 
plain, that  he  is  only  allowed  to  recover  for  part  performance,  what 
his  services  have  benefited  the  other  party,  with  reference  to  full  per- 
formance. 

The  fact  that  plaintifif's  sickness  was,  in  this  case,  contracted  in  some 
occasional  work,  which  he  consented  to  do,  beyond  the  limits  of  his 
employment,  will  not  afifect  the  legal  or  equitable  rights  of  the  par- 
ties, in  court,  however  it  might  be  in  the  forum  of  conscience,  where 
this  court  does  not  attempt  to  decide.  Judgment  reversed  and  judg- 
ment for  defendant.^* 

18  In  McClellan  v.  Harris  (1895)  7  S.  D.  447,  64  N.  W.  522,  plaintiff  con- 
tracted to  serve  defendant  as  a  farm  laborer,  but  o\ving  to  illness  was  forced 
to  stop  work  before  tbe  expiration  of  the  stipulated  time,  lie  brought  ac- 
tion for  the  value  of  his  services,  and  defendant  sought  to  recoup  a  still  larger 
sum  as  damages  occasioned  by  plaintiffs  failure  to  complete  his  contract. 
The  court  ruled  against  the  defendant's  claim  for  recoupment  saying:  "Con- 
tracts to  perform  personal  labor  are  considered  as  made  on  the  implied  condi- 
tion that  the  employee  shall  be  alive  and  capable  of  performing  the  contract; 
and  inability  to  work,  produced  by  unavoidable  necessity,  constitutes  an  ex- 
cuse for  not  laboring,  and  he  is  entitled  to  recover  reasonable  pay  for  serv- 
ices performed.  *  *  *  We  characterize  as  unjust  and  reject  as  unreason- 
able, the  inculcation  of  a  doctrine  which  would  defeat  a  recovery  in  the  cas« 
before  us." 

But  see  Walsh  v.  Fisher,  supra,  255,  note. 
Thues.Quasi  Cont. — 17 


258  BENEFITS   UNDER   CONTRACT   PARTIALLY   PERFORMED         (Cll.  3 

JONES  V.  JUDD. 

(Court  of  Appeals  of  New  York,  1S50.    4  N.  T.  411.) 

James  Jones  and  Edward  Jones  sued  Judd  in  the  common  pleas  of 
Cattaraugus  county,  for  the  price  of  work  and  labor.  The  defendant 
contracted  with  the  state  to  complete  certain  sections  of  the  Genesee 
Valley  Canal.  On  the  14th  of  September,  1840,  he  entered  into  a  sub- 
contract with  the  plaintiffs  for  a  part  of  the  same  work,  by  which  he 
agreed  to  pay  tlieni  seven  cents  per  yard  for  excavating  and  eight  cents 
for  embankment,  monthly,  according  to  the  measurement  of  the  en- 
gineers, except  ten  per  cent,  which  was  not  to  be  paid  tmtil  tlie  final 
estimate.  The  work  on  the  canal,  including  that  on  which  the  plain- 
tiffs were  engaged,  was  stopped  by  the  canal  commissioners  on  the  21st 
day  of  June,  1841,  before  they  had  completed  their  job,  and  tliey  never 
finished  it.  On  the  29th  of  March,  1842,  the  legislature  passed  the 
act  "to  preserve  the  credit  of  the  state,"  which  put  an  end  to  tlie 
original  contract  between  the  defendant  and  the  state,  and  before  the 
commencement  of  this  suit  that  contract  had  expired  by  its  own  limi- 
tation. The  defendant  paid  the  plaintiffs  for  all  the  work  performed 
by  them  except  the  ten  per  cent,  reserved,  which  amounted  to  $85.30, 
which  sum  the  plaintiffs  claimed  to  recover. 

The  defendant  moved  for  a  nonsuit  on  the  ground,  among  others, 
that  without  a  waiver  of  full  performance  of  the  contracts,  or  with- 
out some  act  of  his  to  prevent  the  performance,  the  plaintiffs  could 
not  recover.  The  motion  was  overruled.  The  defendant  then  proved 
that  the  work  actually  done  by  the  plaintiffs  under  the  contract  was 
worth  only  five  cents  for  embankment  and  seven  cents  for  excavation. 
He  offered  also  to  prove  what  the  cost  of  the  work  not  done  would 
be,  and  that  the  excavation  and  embankment  not  done  would  be  more 
difficult  and  expensive  than  the  portion  completed.  This  evidence  was 
objected  to  and  excluded.  The  referees  before  whom  the  trial  was 
had  reported  in  the  plaintiffs'  favor  for  the  sum  claimed.  The  com- 
mon pleas  confirmed  their  report,  and  rendered  judgment  thereon, 
which  was  af^rmed  by  the  supreme  court,  on  error  brought.  The  de- 
fendant appealed  to  this  court. 

Gardiner,  J.  The  plaintiffs  were  stopped  in  the  prosecution  of  the 
work,  in  fulfillment  of  their  contract,  by  the  authority  of  the  State 
officers.  Before  this  injunction  was  removed,  the  law  of  March  29, 
1842,  for  preserving  tlie  credit  of  the  State  was  passed  which  put  an , 
end  to  the  original  contract,  and  the  agreement  between  the  plaintiffs 
and  defendant  which  grew  out  of  it.  Taylor  v.  Lowell,  3  Mass.  331, 
3  Am.  Dec.  141 ;  Doughty  v.  Neal,  1  S'aund.  216,  note  b  (5th  Ed.) ; 
Mounsey  v.  Drake,  10  Johns.  28. 

As  the  plaintiffs  were  prevented  by  the  authority  of  the  State  from 
completing  their  contract,  they  are  entitled  to  recover  for  the  work 


Sec.  1)  FURTHER  PERFORMANCE   IMPOSSIBLE  259 

performed  at  the  contract  price.  The  ten  per  cent,  was  a  part  of  the 
price  stipulated.  It  was  reserved  to  secure  the  fulfillment  of  the  con- 
tract, and  to  be  paid  upon  a  final  estimate.  The  performance  oi  the 
required  condition  became  impossible  by  the  act  of  the  law,  and,  of 
course,  tlie  plaintiffs  were  entitled  to  recover  without  showing  a  com- 
pliance with  the  agreement  in  this  particular.  Comyn  on  Contracts, 
50 ;  Linningdale  v.  Livingston,  10  Johns.  36. 

Upon  the  question  of  damages,  I  think  the  offered  evidence  was 
properly  rejected.  If  the  contract  had  been  performed  by  the  plain- 
tiff, he  might  have  recovered  upon  the  special  agreement,  or  upon  the 
common  counts,  and  in  either  case  he  would  be  entitled  to  the  price 
fixed  by  the  agreement.  Phillips'  Evidence,  109  (2d  Ed.) ;  Dubois  v. 
Delaware  &.  Hudson  Canal  Company,  4  Wend.  285,  and  cases  cited. 
If  the  performance  had  been  arrested  by  the  act  or  omission  of  the 
defendants,  the  plaintiff  would  have  had  his  election  to  treat  the  con- 
tract as  rescinded,  and  recover  on  a  quantum  meruit  the  value  of  his 
labor,  or  he  might  sue  upon  the  agreement,  and  recover  for  the  work 
completed  according  to  the  contract,  and  for  the  loss  in  profits  or 
otherwise  which  he  had  sustained  by  the  interruption.  Linningdale  v. 
Livingston,  10  Johns.  36;  9  Bam.  &  Cress.  145;  Masterton  v.  The 
Mayor,  &c.,  of  Brooklyn,  7  Hill,  69,  75,  42  Am.  Dec.  38.  In  this  case 
the  performance  was  forbidden  by  the  State.  Neither  party  was  in 
default.  All  the  work  for  which  a  recovery  is  sought  was  done  under 
the  contract,  which  fixed  a  precise  sum  to  be  paid  for  each  yard  of 
earth  removed,  without  regard  to  the  difficulty  or  expense  of  tlie  ex- 
cavation. If  the  plaintiffs  had  commenced  with  the  more  expensive 
part  of  the  work,  they  could  not,  under  the  circumstances,  have  claim- 
ed to  have  been  allowed  for  the  profits  to  arise  from  that  portion  which 
they  were  prevented  from  completing.  Such  an  allowance  is  predi- 
cated upon  a  breach  of  the  contract  by  the  defendant.  Id.,  7  Hill, 
71,  73,  42  Am.  Dec.  38.  The  defendants,  in  the  language  of  Beards- 
ley,  J.,  "are  not,  by  their  wrongful  act,  to  deprive  the  plaintiff  of  the 
advantage  secured  by  the  contract."  Here  there  was  no  breach  of  the 
agreement  by  either  party.  The  plaintiffs  could  not  recover  profits, 
and  the  defendant  cannot,  consequently,  recoup  them  in  this  action. 
Blanchard  v.  Ely,  21  Wend.  346,  34  Am.  Dec.  250. 

Again,  the  plaintiffs  assumed  the  risk  of  all  accidents  which  might 
enhance  the  expense  of  the  work,  while  the  contract  was  subsisting 
(Boyle  V.  Agawam  Canal  Co.,  22  Pick.  384,  33  Am.  Dec.  749;  Sher- 
man V.  Mayor  of  New  York,  1  N.  Y.  321),  and  is  entitled,  consequent- 
ly, to  the  advantages,  if  any,  resulting  from  them.  The  suspension 
of  the  work  by  State  authority  was  an  accident  unexpected  by  either 
party.  It  was  one,  which,  under  the  ofi'er,  we  are  bound  to  assume, 
was  of  benefit  to  the  plaintiff's.  But  the  defendant  cannot  require  an 
abatement  from  the  agreed  price,  for  what  has  been  done,  unless  he 
could  demand  it  in  case  a  flood  had  partially  excavated  or  embanked 


260  BENEFITS   UNDER   CONTRACT   PARTIALLY   PERFORMED  (Cll.  3 

the  section  of  the  canal  to  be  completed  by  the  plaintiffs.  The  judg- 
ment must  be  affirmed.  * 

Je;wi:tt,  Hurlbut  and  Pratt,  JJ.,  concurred. 

Bronson,  Ch.  J.,  RuGGLEs,  Harris  and  Taylor,  JJ.,  were  for  re- 
versal on  the  ground  that  the  evidence  offered  upon  the  question  of 
damages  was  improperly  excluded. 

Judgment  affirmed.^® 


MENTONE  V.  ATHAWES. 

(Court  of  King's  Bench,  1764.     3  Burr.  1592.) 

This  was  an  action  by  a  ship-wright  for  work  and  labor  done  and 
materials  provided,  in  repairing  the  defendant's  ship.  And  the  ques- 
tion was,  "whether  the  plaintiff'  was  entitled  to  recover,  under  the  fol- 
lowing circumstances" : 

The  ship,  being  damaged,  was  obliged  to  put  back,  in  order  to  be 
repaired  in  dock ;  and  was  to  have  gone  out  of  the  dock  on  a  Sunday : 
in  the  interim,  viz.  on  the  day  before,  only  tlirce  hours  work  was  want- 
ing to  complete  the  repair,  a  fire  happened  at  an  adjacent  brewhouse, 
and  was  communicated  to  the  dock ;  and  the  ship  was  burnt. 

N.  B,  It  was  the  ship-wright's  own  dock ;  and  the  owner  of  the 
ship  had  agreed  to  pay  him  £5  for  tlie  use  of  it. 

This  case  was  argued  on  Tuesday  the  13th  of  this  month  by  Mr. 
Murphy,  for  the  plaintiff;    and  Mr.  Dunning  for  the  defendant. 

For  the  plaintiff  it  was  insisted  that  he  was  not  answerable  for  tliis 
event,  which  happened  without  his  neglect  or  default;  unless  tliere 
had  been  some  special  undertaking. 

The  plaintiff  therefore  was  not  answerable  for  this  loss  of  the 
ship.  And  if  tlie  plaintiff  be  not  liable  for  the  loss  of  the  ship,  he 
is  intitled  to  be  paid  for  his  work  and  materials.  The  materials  must 
be  considered  as  having  been  delivered.  The  merchant  always  pays 
£5  for  the  hire  of  a  dock;  and  so  he  agreed  to  do  in  this  case.  And 
these  materials  were  delivered  on  board  his  ship  in  this  dock. 

The  defendant  might  have  sold  this  ship,  while  it  was  in  the  dock; 
and  these  materials  would  have  been  part  of  it;  the  fixing  them  to  the 
ship  was  a  delivery  of  them.  The  adjunct  must  go  with  the  subject. 
Dr.  Cowell,  in  treating  of  the  various  modes  of  acquiring  property,  is 
of  this  opinion.^" 

19  In  To\^Ties  v.  Cheney  (1911)  114  Md.  362,  79  Atl.  590,  the  plaintiff,  who 
had  a  contract  for  the  services  of  a  jockey  in  riding  his  race  liorses  during 
certain  years,  transferred  the  contract  and  the  right  to  the  services  of  the 
jockey  to  the  defendant  under  an  agreement  which  provided  as  conditions  of 
its  efficacy  that  the  jockey's  father  should  consent  to  the  transfer  and  that 
it  sliould  also  be  approved  by  a  jockey  club.  The  father  of  the  jockey  refused 
his  assent  and  the  transfer  was  not  approved  by  the  jockey  club.  It  was  held 
that  tlie  plaintiff  was  not  entitled  to  recover  on  a  quantuiu  meruit  for  two 
months'  services  rendered  by  the  jockey  to  the  defendant  before  the  father 
refused  his  assent  and  the  jockey  club  declined  to  approve. 

20  The  plaintiff's  argument  is  abridged. 


Sec.  1)  FURTHER  PERFORMANCE   IMPOSSIBLE  261 

Mr.  Dunning,  contra,  for  the  defendant. 

The  question  is,  "whether  the  plaintiff  is  intitled  to  be  paid  by  the 
defendant  for  that  work  and  labour  from  which  the  defendant  neither 
did  nor  could  reap  any  advantage." 

The  plaintiff  was  obliged  to  deliver  the  ship  safe ;  having  undertak- 
en to  repair  it.  The  defendant  has  had  no  benefit  from  the  plaintiff's 
labour  or  materials ;  neither  was  the  plaintiff's  undertaking  complete- 
ly performed.  Carriers  and  hoymen  cannot  be  intitled  to  be  paid 
for  carrying  things  that  perish  before  they  are  delivered;  nor  jew- 
ellers, for  setting  a  jewel,  that  is  destroyed  before  it  is  set.  So  a 
taylor;  where  the  cloth  is  destroyed  before  the  suit  is  finished.  So 
of  any  unfinished  incomplete  undertaking.  As  there  is  no  express 
agreement  to  support  this  action,  the  Court  will  not  imply  any. 

Mr.  Murphy  in  reply.  As  to  the  defendant's  not  having  had  the 
benefit  of  the  repair — There  is  no  reason  why  the  ship-wright  should 
not  be  paid  for  his  work  and  labour  and  materials.  Digest,  title  De 
Negotiis  Gestis.  The  defendant  might  have  insured  his  ship.  Noth- 
ing can  be  due  to  a  carrier  or  hoyman,  till  the  delivery  of  tlie  goods 
at  the  destined  place.  But  these  materials  were  delivered;  and  the 
work  and  labour  actually  done.  Suppose  a  horse  sent  to  a  farrier's 
to  be  cured,  is  burnt  in  the  stable  before  the  cure  is  completely  effect- 
ed; shall  not  tlie  farrier  be  paid  for  what  he  has  already  done?  A 
pawn-broker,  if  the  pawn  is  destroyed  by  tlie  act  of  God,  shall  re- 
cover the  money  lent. 

Lord  Mansfield.  This  is  a  desperate  case  for  the  defendant 
(though  compassionate:)  I  doubt  it  is  very  difficult  for  him  to  main- 
tain his  point.  Besides,  it  is  stated,  "that  he  paid  £5  for  the  use  of 
the  dock." 

Mr.  Justice  Wilmot.  So  that  it  is  hke  a  horse  that  a  farrier  was 
curing,  being  burnt  in  the  owner's  own  stable. 

Mr.  Attorney  General  being  retained  to  argue  it  for  the  defendant, 
the  Court  offered  to  hear  a  second  argument  from  him,  if  he  thought 
he  could  maintain  his  case ;  but  seemed  to  think  it  would  be  a  very 
difficult  matter  to  do  it.  Mr.  Attorney  General  appeared  to  entertain 
very  little  hope  of  success ;  however,  he  desired  a  day  or  two  to 
consider  of  it.     But 

Mr.  Recorder  now  moving  "that  the  postea  might  be  delivered  to 
the  plaintiff,"  the  Attorney  General  did  not  oppose  it.  And  a  rule  was 
made  accordingly,  that  the  postea  be  delivered  to  the  plaintiff. 


262  BENEFITS   UNDER  CONTRACT   PARTIALLY   PERFORMED         (Ch.  3 


KEELING  V.  SCHASTEY  &  VOLLMER. 

(District  Court  of  Appeal,  First  District,  California,  1912.     18  Cal.  App.  764, 

124  Pac.  445.) 

Appeal  from  Superior  Court,  City  and  County  of  San  Francisco ; 
James  M.  Troutt,  Judge. 

Action  by  J.  G.  Keeling  against  Schastey  &  Vollmer,  a  corporation. 
From  a  judgment  for  plaintiff  and  an  order  denying  motion  for  new 
trial,  defendant  appeals. 

Kerrigan,  J.  This  is  an  appeal  by  the  defendant  from  a  final  judg- 
ment in  favor  of  the  plaintiff,  taken  within  60  days  after  entry,  and 
from  an  order  denying  defendant's  motion  for  a  new  trial,  in  an  ac- 
tion in  quantum  meruit  for  labor  performed  and  materials  furnished. 

Briefly,  the  facts  are  that  in  the  month  of  June,  1907,  the  defendant 
entered  into  a  contract  with  the  Cliff  House  Company,  a  corporation, 
to  alter  and  repair  an  existing  building  known  as  the  Cliff  House. 
Subsequently  the  defendant  made  a  contract  with  A.  C.  Wocker,  plain- 
tiff's assignor,  whereby  certain  painting  and  plastering  work  in  and 
upon  said  building  was  to  be  done  by  the  latter  for  a  sum  not  exceeding 
$4,700,  and  he  was  to  accept  payments  on  the  basis  of  75  per  cent,  of 
the  work  done  from  time  to  time  as  the  work  progressed,  the  remain- 
ing 25  per  cent,  being  payable  35  days  after  its  completion. 

Prior  to  the  time  Wocker  was  able  to  complete  his  contract,  and 
after  he  had  furnished  labor  and  materials  of  the  reasonable  value  of 
$3,545.96,  the  building  was  destroyed  by  fire  without  the  fault  of  ei- 
ther party  to  the  contract.  At  this  time  Wocker  had  received  on  ac- 
count a  payment  of  $1,800.  This  suit  is  to  recover  $1,745,  alleged  to 
be  the  difference  between  the  amount  paid  and  the  reasonable  value  of 
the  work  as  it  had  progressed  up  to  the  time  of  the  destruction  of  the 
building. 

It  is  well  settled  that,  where  one  undertakes  to  furnish  labor  and 
materials  in  the  building  of  a  house  or  other  structure  for  another 
for  a  specified  sum,  the  builder  cannot  recover  for  a  partial  construc- 
tion in  case  the  building  be  destroyed  without  the  fault  of  either  party, 
unless  the  builder  is  protected  against  such  contingency  by  the  terms  of 
the  contract.  In  order  to  entitle  the  builder  to  recover,  full  perform- 
ance of  the  contract  is  necessary,  unless  he  has  been  prevented  by  the 
act  of  the  other  party,  or  by  operation  of  law,  or  by  the  act  of  God, 
or  by  the  public  enemy  (Carlson  v.  Sheehan,  15'7  Cal.  692,  109  Pac. 
29;  Green  v.  Wells,  2  Cal.  584);  and  fire  is  not  classified  as  an  act  of 
God  (Pope  V.  Farmers'  Union  &  Milling  Co.,  130  Cal.  139,  62  Pac.  384, 
53  L.  R.  A.  673,  80  Am.  St.  Rep.  87). 

It  is  also  very  well  established  in  this  country  that  where  one,  as  in 
this  case,  agrees  to  furnish  labor  and  materials  on  an  existing  building, 
the  property  of  another,  the  agreement  is  upon  the  implied  condition 
that  the  building  shall  remain  in  existence,  and  that  the  destruction  of  it 


Sec.  1)  FURTHER  PERFORMANCE   IMPOSSIBLE  2G3 

without  the  fault  of  either  party  will  excuse  perfonnance  of  the  con- 
tract by  the  person  performing  such  labor,  and  entitle  him  to  recover 
the  reasonable  value  of  the  part  performance  already  effected.  This 
view,  it  appears,  is  contrary  to  the  English  doctrine  (Appleby  v.  Dodds, 
8  East.  300;  Appleby  v.  Myers,  L.  R.  2  Com.  Pleas,  651) ;  but  it  is  the 
uniform  rule  in  this  country  (30  Am.  &  Eng.  Ency.  of  Law  [2d  Ed.] 
p.  1251,  and  numerous  cases  cited),  except  in  the  state  of  Illinois  (Huv- 
ett  &  Smith  Mfg.  Co.  v.  Chicago  Edison  Co.,  167  111.  233,  47  N.  E. 
384,  59  Am.  St.  Rep.  272). 

In  Hollis  V.  Chapman,  36  Tex.  1,  a  carpenter  contracted  to  furnish 
the  materials  and  to  do  the  work  on  the  defendant's  brick  building, 
then  in  course  of  construction,  for  a  fixed  sum  of  money,  but  before 
the  work  was  completed  the  building  was  destroyed  by  fire  without  the 
fault  of  either  party  to  the  contract.  The  action  was  to  recover  for 
the  materials  furnished  and  labor  done,  and  it  was  held  that  the  car- 
penter was  entitled  to  recover. 

So  in  Cleary  v.  Sohier,  120  Mass.  210,  where  the  plaintiff  made  a 
contract  to  lath  and  plaster  a  certain  building  for  an  agreed  price  per 
square  yard.  When  the  contract  was  about  one-half  performed,  the 
building  was  destroyed  by  fire.  The  plaintiff  sued  in  assumpsit  for 
work  done  and  materials  furnished,  and  it  was  held  that  he  was  en- 
titled to  recover. 

In  Niblo  V.  Binsse,  3  Abb.  Dec.  375,  40  N.  Y.  476,  the  plaintiff's  as- 
signor contracted  to  do  certain  plumbing  work  in  a  house  owned  by 
defendant's  testator.  Part  of  the  work  was  to  be  paid  as  it  progressed, 
and  the  final  payment  upon  its  completion.  During  the  performance  of 
the  contract  the  building  was  burnt  without  fault  of  the  parties,  and 
the  plaintiff  was  permitted  to  recover  for  the  work  performed.  This 
case,  like  the  others,  proceeded  on  the  theory  that  there  was  a  breach 
of  the  implied  undertaking  by  the  owner  of  the  continued  existence  of 
the  building,  which  was  necessary  to  enable  the  contractor  to  perform 
his  agreement.^^ 

In  the  case  of  Butterfield  v.  Byron,  153  Mass.  517,  27  N.  E.  667,  12 
L.  R.  A.  571,  25  Am.  St.  Rep.  654,  the  court  says:  "When  work  is  to 
be  done  under  a  contract  on  a  chattel  or  building  which  is  not  wholly 

21  "We  think  Niblo  v.  Binsse,  upon  which  the  learned  referee  relied,  was 
correctly  decided,  but,  with  due  respect,  we  submit  that  the  decision  was 
placed  upon  untenable  ground.  The  court  said  that  it  placed  its  decision  up(jn 
the  ground  that  the  contractor  was  prevented  from  performing  his  contract 
by  the  default  of  the  owner  in  failing  to  keep  on  hand  <and  in  readiness  the 
building  in  which  the  work  was  to  be  done,  and  was  in  default  whether  the 
building  was  destroyed  with  or  without  fault  on  his  part.  The  case  shows 
that  the  building  was  destroyed  without  fault  of  either  owner  or  contractor. 
If  the  defendant  was  without  fault  in  the  destruction  of  his  building,  it  is 
ditHcult  to  see  how  he  was  in  default  for  not  keeping  it  on  bund.  In  the  Niblo 
Case,  as  in  the  one  under  review,  we  think  the  destruction  of  the  building  pre- 
vented and  excused  the  defendant  from  keeiiing  it  on  hand,  and  that  neither 
party  could  recover  damages  of  the  other  upon  account  of  the  breach  of  the 
contract  thereby  caused."  Per  Laudou,  J.,  in  Hayes  v.  Gross  (ISOii)  9  App. 
Div.  12,  40  N.  Y.  Supp.  109S. 


264      BENEFITS  UNDER  CONTRACT  PARTIALLY  PERFORMED    (Ch.  3 

the  property  of  the  contractor  and  for  which  he  is  not  solely  accounta- 
ble, as  where  repairs  are  to  be  made  on  the  property  of  another,  the 
agreement  on  both  sides  is  upon  the  implied  condition  that  the  chattel 
or  building  shall  continue  in  existence,  and  the  destruction  of  it  with- 
out the  fault  of  either  of  the  parties  will  excuse  performance  of  the 
contract,  and  leave  no  right  of  recovery  of  damages  in  favor  of  either 
against  the  other  [citing  cases].  In  such  cases,  from  the  very  nature 
of  the  agreement  as  applied  to  the  subject-matter,  it  is  manifest,  that, 
while  nothing  is  expressly  said  about  it,  the  parties  contemplated  the 
continued  existence  of  that  to  which  the  contract  relates.  The  implied 
condition- is  a  part  of  the  contract  as  if  it  were  written  into  it,  and  by 
its  terms  the  contract  is  not  to  be  performed  if  the  subject-matter  of  it 
is  destroyed,  without  the  fault  of  either  of  the  parties,  before  the  time 
for  complete  performance  has  arrived."  But  says  the  same  authority: 
"Where  there  is  a  bilateral  contract  for  an  entire  consideration  moving 
from  each  party,  and  the  contract  cannot  be  performed,  it  may  be 
held  that  the  couoideration  on  each  side  is  the  performance  of  the  con- 
tract by  the  other,  and  that  a  failure  to  completely  perform  it  is  a 
failure  of  the  entire  consideration,  leaving  each  party,  if  there  has  been 
no  breach  or  fault  on  either  side,  to  his  implied  assumpsit  for  what  he 
has  done." 

It  is  also  contended  by  defendant  that,  if  the  plaintiff  is  entitled  to 
recover  at  all,  he  is  entitled  to  recover  only  75  per  cent,  of  the  contract 
price  of  the  work  done  and  materials  furnished  up  to  the  time  of  the 
fire.  If  this  had  been  an  action  upon  the  contract,  defendant's  position 
would  be  sound;  but  this  is  an  action  for  the  reasonable  value  of  the 
work  and  materials  furnished,  and  therefore,  as  seen  by  the  authori- 
ties just  adverted  to,  the  terms  of  the  contract  in  this  regard  do  not 
control. 

The  evidence  is  sufficient  to  support  the  findings,  which  cover  all 
the  material  issues  and  support  the  judgment. 

The  judgment  and  order  appealed  from  are  affirmed.^' 

2s  "The  plaintiff  agreed  to  put  a  tin  roof  on  defendant's  house  at  five 
dollars  per  square.  As  the  work  progressed,  it  became  the  defendant's  prop- 
erty. Every  square  of  tin,  as  it  was  laid  and  soldered,  became  a  fixed  part 
of  the  building,  by  the  skill  and  industry  of  the  workman,  ceased  tO'  be  the 
property  of  the  plaintiff,  and  became  exclusively  the  defendant's.  When  the 
house  burned,  the  roof,  which  as  a  part  of  it,  in  so  far  as  completed,  burned 
with  it.  It  belonged  to  him,  and  the  owner  must  bear  the  loss.  The  plaintiff 
was  not  an  insurer,  and  received  nothing  for  the  risks;  but  the  evidence 
shows  that  the  defendant  had  the  building,  including  the  roof,  insured  for  its 
benefit.  Why,  then,  should  it  make  the  mechanic  lose  his  labor  and  material, 
for  which  it  receives  pay  from  the  insurance  conipanyV"  Hysell  v.  Sterling 
Coal  &  Manufacturing  Co.  (1899)  46  W.  Va.  15S,  33  S.  E.  95. 

See,  to  the  same  etfect,  Hayes  v.  Gross  (1896)  9  App.  Div.  12,  40  N.  Y.  Supp. 
1098  (an  excellent  opinion  by  Landon,  J.). 

In  Young  v.  City  of  Chicopee  (190t)  186  Mass.  518,  72  N.  E.  63,  plaintiff 
contracted  to  make  certain  repairs  on  a  bridge  for  defendant,  and  in  order 
to  insure  prompt  completion  of  the  repairs,  the  contract  stipulated  that  no 
work  should  be  begun  until  the  lumber  for  at  least  one-half  of  the  repairs 
contemplated  should  be  "upon  the  job."    Plaintiff  complied  with  this  stipula- 


Sec.  1)  FURTHER  PERFORMANCE   IMPOSSIBLE  2G5 


TAULBEE  V.  McCARTY. 

(Court  of  Appeals  of  Kentucky,  1911.     144  Ky.  199,  137  S.  W.  1045,  36  L.  R.  A. 
[N.  S.]  43,  Ann.  Cas.  1913A,  456.) 

Action  by  F.  M.  McCarty  against  S.  S.  Taulbee.  Judgment  for 
plaintiff,  and  defendant  appeals. 

HoBSON,  C.  J.^^  S.  S.  Taulbee  owned  a  house  in  Jackson,  Ky.,  and 
made  a  contract  with  F.  M.  McCarty  by  which  McCarty  agreed  to  raise 
the  house  and  put  a  new  foundation  under  it  for  $400.  McCarty  dug 
some  trenches  around  the  house  preparatory  to  raising  it,  and  got 
out  the  stone  for  the  foundation,  which  was  to  be  put  under  the  house 
after  it  was  raised.  After  he  had  done  this,  and  before  he  had  be- 
gun raising  the  house,  it  accidentally  caught  fire  and  burned  down. 
He  then  brought  this  suit  against  Taulbee  to  recover  for  the  work 
he  had  done.  The  house  was  destroyed  without  the  fault  of  either 
party,  but  McCarty  claimed  that  Taulbee  was  to  furnish  certain  jacks 
to  be  used  in  raising  the  house ;  that  Taulbee  delayed  him  in  his 
work  by  his  negligence  in  furnishing  the  jacks  ;  and  that  but  for  this  he 
would  have  completed  the  contract  before  the  time  the  house  caught 
fire.  *  *  *  Xhe  undisputed  evidence  is  that  [Taulbee]  ordered 
[the  jacks]  at  once,  and  this  was  all  that  he  could  do  under  the  circum- 
stances. On  these  facts  the  circuit  court  gave  judgment  in  favor 
of  McCarty  against  Taulbee  for  $258,  the  value  of  the  work  which 
he  had  done  in  digging  the  ditches  and  getting  out  the  rock  for  the 
job.     Taulbee  appeals. 

tion  and  placed  his  materials  on  the  river  bank  adjacent  to  the  bridge.  After 
part  of  the  repairs  had  been  completed  an  accidental  fire  destroyed  the  bridge 
and  also  plaintiff's  lumber  not  yet  incorporated  in  the  bridge.  Defendant 
conceded  plaintiff's  right  to  the  value  of  the  work  done  and  materials  wrought 
into  the  structure,  but  disputed  plaintiff's  claim  for  the  value  of  the  materials 
stored  on  the  bank  and  destroyed  by  the  fire.  The  court  decided  the  latter 
point  for  the  defendant,  Hammond,  J.,  saying:  "It  is  to  be  noted  that  there 
had  been  no  delivery  of  this  lumber  to  the  defendant.  It  was  brought  'upon 
the  job'  and  kept  there  as  the  lumber  of  the  plaintiff.  The  title  to  it  was  in 
him  and  not  in  the  defendant.  Nor  did  the  defendant  have  any  care  or  con- 
trol over  it.  No  part  of  it  belonged  to  the  defendant  until  wrought  into  the 
bridge.  The  plaintiff  could  have  exchanged  it  for  other  lumber.  If  at  any 
time  during  the  progress  of  the  work  before  the  fire  the  plaintiff  had  refused 
to  proceed,  the  defendant  against  his  consent  could  not  lawfully  have  used  it. 
Indeed,  had  it  not  been  destroyed,  it  would  have  remained  the  property  of 
the  plaintiff'  after  the  fire.  Nor  is  the  situation  changed,  so  far  as  respects 
the  question  before  us,  by  the  fact  that  the  lumber  wjis  brought  there  in  com- 
pliance with  the  condition  relating  to  the  commencement  of  the  work.  This 
condition  manifestly  was  inserted  to  insure  the  rapid  progress  of  the  work, 
and  it  has  no  material  bearing  upon  the  rights  of  the  parties  in  relation  to 
the  lumber.  *  ♦  *  In  the  present  case  the  defendant,  in  accordance  with 
this  doctrine,  should  be  held  liable  for  the  labor  and  materials  actually 
wrought  into  the  bridge.  To  that  extent  it  insured  the  plaintiff'.  But  it  did 
not  insure  the  plaintiff"  against  the  loss  of  lumber  owned  by  him  at  the  time 
of  the  fire,  which  has  not  then  come  into  such  relations  with  the  bridge  as, 
but  for  the  fire,  to  enure  to  the  benefit  of  the  defendant  as  contemplated  by 
the  contract." 

23  A  portion  of  the  opinion  Is  omitted. 


266      BENEFITS  UNDER  CONTRACT  PARTIALLY  PERFORMED    (Ch.  3 

We  have  read  the  record  with  much  care  and  find  that  there  is 
nothing  in  it  to  charge  Taulbee  with  negligence  in  getting  the  jacks. 
While  there  was  some  delay  in  getting  the  jacks,  this  was  from  causes 
which  Taulbee  could  not  control.  The  burning  of  the  house  was 
an  accident  which  neither  of  them  anticipated,  and  there  is  no  reason 
under  the  evidence  for  charging  Taulbee,  who  had  lost  his  house, 
with  the  loss  that  McCarty  sustained  on  the  ground  that  it  was  his 
fault  that  the  jacks  were  not  on  hand.  It  remains  to  determine 
whether,  on  a  contract  to  raise  a  house,  the  owner  of  the  house 
is  liable  for  what  the  contractor  has  done  under  the  contract,  when 
the  house  burns  down  before  the  work  is  in  fact  done  on  the  house. 
There  are  a  number  of  American  cases  holding  that  where  a  con- 
tractor agrees  to  perform  work  on  property  belonging  to  another, 
and  without  the  "fault  of  either  the  property  is  destroyed  by  fire  or 
otherwise,  before  tlie  work  is  completed,  the  contractor  may  re- 
cover on  a  quantum  meruit  for  the  services  performed.  Cleary  v. 
Sohier,  120  Mass.  210;  Whelan  v.  Ansonia  Clock  Co.,  97  N.  Y. 
293 ;  Mollis  v.  Chapman,  36  Tex.  1 ;  Cook  v.  McCabe,  53  Wis.  250, 
10  N.  W.  507,  40  Am.  Rep.  765.  On  the  other  hand,  the  contrary 
was  held  in  England  in  Appleby  v.  Meyers,  16  L.  T.  N.  S.  669.  This 
view  has  been  followed  by  the  following  American  cases :  Brumby  v. 
Smith,  3  Ala.  123 ;  Newman  Lumber  Co.  v.  Purdum,  41  Ohio  St.  373 ; 
Fildew  v.  Besley,  42  Mich.  100,  3  N.  W.  278,  36  Am.  Rep.  433; 
Krause  v.  Carrothersville  School  Trustees,  162  Ind.  278,  70  N.  E. 
264,  65  L.  R.  A.  Ill,  102  Am.  St.  Rep.  203,  1  Ann.  Cas.  460;  Dame 
v.  Woods,  7Z  N.  H.  222,  60  Atl.  744,  70  L.  R.  A.  133 ;  Siegel  v.  Eaton, 
165  111.  550,  46  N.  E.  449. 

The  view  taken  by  these  cases  is  preferred  by  Judge  Story.  (Story 
on  Bailments,  §  426b),  by  Mr.  Bishop  (Bishop  on  Contracts,  §  588), 
and  by  the  editor  of  the  second  edition  of  the  American  &  English 
Encyclopaedia  of  Law  (volume  15,  p.  1090).  It  seems  to  us  the  sound 
rule  on  principle.  Where  a  contract  is  an  entirety,  he  who  has  not  per- 
formed his  contract  cannot  maintain  an  action  upon  it.  Implied 
contracts  are  as  a  rule  only  maintained  to  prevent  the  enrichment  of 
one  person  at  the  expense  of  another.  As  a  rule  there  is  no  implied 
contract  where  no  benefit  has  been  received.  The  plaintiflF  here  can- 
not recover  upon  his  contract  because  he  has  not  performed  it;  he 
cannot  recover  against  Taulbee  upon  an  implied  contract,  for  Taul- 
bee has  received  no  benefit  from  his  work.  The  rock  which  McCarty 
got  out  is  his,  and  he  can  do  as  he  pleases  with  it.  The  ditches  which 
he  dug  were  dug  simply  to  facilitate  his  work  in  putting  in  the  new 
foundation  and  are  of  no  benefit  to  Taulbee  now  that  the  house  is 
burned.-*  If  McCarty  had  undertaken  to  add  a  room  to  the  house  for 
$400,  and,  before  he  had  finished  the  addition,  the  addition  only  had 

2  4  But  see  Angus  v.  Scully  (1900)  176  Mass.  357,  57  N.  E.  G74,  49  U  R.  A. 
562,  79  Am.  St.  Rep.  318.. 


Sec.  1)  FURTHER  PERFORMANCE   IMPOSSIBLE  267 

burned,  leaving  the  old  house  intact,  under  all  the  authorities,  Mc- 
Carty  could  have  maintained  no  action  against  Taulbee  for  the  work 
he  had  done.  We  cannot  see  that  a  distinction  can  be  made  between  a 
case  where  the  whole  house  burns  and  where  only  that  part  bums 
which  the  workman  is  adding  to  the  house.  The  fact  that  the  remain- 
der of  the  house  also  burned  does  not  put  the  workman  in  a  better 
position  than  if  his  work  alone  had  burned. 

In  this  case  McCarty  had  done  no  work  on  the  house  itself,  and  we 
do  not  see  that  he  can  be  in  a  better  position  than  he  would  be  if 
he  had  undertaken  to  add  a  room  to  the  house  and  the  whole  structure 
had  burned  before  he  had  completed  his  contract  or  was  entitled  to 
demand  anything  of  Taulbee  under  it.  Of  course,  a  different  rule 
applies  where  by  the  contract  payments  are  to  be  made  as  the  work 
progresses,  and  some  of  the  cases  above  referred  to  turn  on  this  dis- 
tinction. It  is  sometimes  said  that  there  can  be  no  recovery  in  such 
cases  where  the  contract  provides  that  nothing  is  to  be  paid  by  the 
owner  until  the  work  is  completed.  But  no  sound  distinction  can  be 
maintained  between  such  a  contract  and  one  like  that  before  us, 
where  the  owner  is  to  pay  a  lump  sum  for  certain  work  when  com- 
pleted.- In  such  a  case  no  money  may  be  demanded  of  him  until  the 
contract  is  performed.  The  legal  effect  of  the  contract  is  that  nothing 
is  to  be  paid  until  tlie  work  is  done.  What  is  implied  by  law  need  not 
be  expressed. 

In  2  Parsons  on  Contracts,  side  page  658,  the  rule  is  thus  stated: 
"A  partial  performance  may  be  a  defense,  pro  tanto,  or  it  may  sus- 
tain an  action,  pro  tanto ;  but  this  can  be  only  in  cases  where  the  duty 
to  be  done  consists  of  parts  which  are  distinct  and  severable  in  their 
own  nature,  and  are  not  bound  together  by  expressions  giving  entirety 
to  the  contract.  It  is  not  enough  that  the  duty  to  be  done  is  in  itself 
severable,  if  the  contract  contemplates  it  only  as  a  whole." 

Under  the  facts  shown,  the  contract,  being  an  entirety,  and  not  per- 
formed, no  recovery  may  be  had  for  what  was  done  under  it.  Judg- 
ment reversed,  and  cause  remanded  for  a  judgment  dismissing  the 
petition.^^ 

2B  In  Appleby  v.  Myers  (1867)  L.  R.  2  C.  P.  651  (cited  In  the  principal  case), 
the  plaintiffs  had  contracted  to  install  certain  machinery  in  defendant's 
factory  and  to  keep  the  same  in  repair  for  two  years.  After  part  of  such  ma- 
chines had  been  installed  an  accidental  fire  destroyed  the  entire  building. 
Plaintiffs  sued  for  the  value  of  the  machinery  already  installed,  but  the  Court 
of  Exchequer  Chamber,  reversing  a  unanimous  decision  of  the  Court  of  Com- 
mon Pleas,  held  for  defendant.  Blackburn,  J.,  who  delivered  the  opinion  of 
the  court,  after  pointing  out  that  "the  whole  question  depends  upon  the  true 
consti^ction  of  the  conti'act  between  the  parties,"  and  after  expressing  a 
doubt  as  to  whether,  owing  to  the  peculiar  provisions  of  the  agreement,  the 
title  to  the  machinery  had  ever  passed  to  the  defendant,  said:  "There  is  noth- 
ing to  render  it  either  illegal  or  absurd  in  the  workman  to  agree  to  complete 
the  whole  and  be  paid  when  the  whole  is  complete  and  not  till  then:  and  we 
think  that  the  plaintiffs  in  the  present  cdse  had  entered  into  such  a  contract" 
— citing  Cutter  v.  Powell,  6  T.  11,  320,  page  249,  supra,  and  kindred  cases. 


268  BENEFITS   UNDER  CONTRACT   PARTIALLY   PERFORMED         (Cll.  3 


SECTION  2.— CONTRACT  ILLEGAi; 


CLAY  V.  YATES. 

(Court  of  Exchequer,  1S5G.     1  Hurl.  &  N.  73.) 

Declaration  for  goods  sold  and  delivered,  and  work  and  labour  and 
materials. — Plea:    never  indebted. 

At  the  trial,  before  Pollock,  C.  B.,  at  the  London  Sittings  after 
last  Hilary  Term,  it  appeared  that  the  defendant  applied  to  the  plain- 
tiff, a  printer,  to  print  a  second  edition  of  a  treatise  called  "Military- 
Tactics."  This  edition  was  to  contain  a  dedication  to  Sir  William  Na- 
pier. The  plaintiff  verbally  agreed  to  find  the  paper  and  print  500 
copies  for  i4.  10s.  a  sheet.  At  the  time  the  plaintiff  commenced  print- 
ing the  treatise  tlie  dedication  was  not  written,  but  it  was  afterwards 
sent  to  him,  and  the  type  set  up  without  his  having  any  knowledge  of 
its  contents.  After  the  proof  sheets  of  the  dedication  had  been  revised 
by  the  defendant  and  returned  to  the  plaintiff,  he  for  the  first  time 
discovered  that  the  dedication  contained  libellous  matter,  and  he 
refused  to  complete  the  printing  of  it.  The  defendant  would  not 
pay  for  the  treatise  without  the  dedication,  whereupon  the  present 
action  was  brought  to  recover  for  printing  the  treatise. 

It  was  objected,  on  behalf  of  the  defendant:  first,  that  this  was  a 
contract  for  the  sale  of  goods  within  the  17th  section  of  the  Statute 
of  Frauds,  29  Car.  II,  c.  3,  as  extended  by  the  9  Geo.  IV,  c.  14,  §  7 ; 
secondly,  that  the  contract  was  an  entire  one,  viz.,  to  print  the  treatise 
and  the  dedication,  and  that  the  plaintiff  having  refused  to  print  the 
dedication  was  not  entitled  to  recover  in  respect  of  the  treatise.  The 
learned  judge  left  it  to  the  jury  to  say,  first,  whether  work  and  labour 
was  the  essence  of  the  contract,  and  the  materials  merely  ancillary ; 
secondly,  whether  the  dedication  was  libellous.  The  jury  found  both 
questions  in  the  affirmative,  whereupon  a  verdict  was  entered  for  the 
plaintiff',  leave  being  reserved  to  the  defendant  to  enter  a  verdict  for 
him. 

A  rule  nisi  was  allowed. 

Pollock,  C.  B.^**  The  rule  must  be  discharged.  The  first  question 
is,  whether  this  is  a  contract  for  the  sale  of  goods  within  the  17th  sec- 
tion of  the  Statute  of  Frauds,  and  I  am  of  opinion  that  it  is  properly 
a  contract  for  work,  labour,  and  materials.     *     *     * 

Then  with  respect  to  the  other  point,  I  entertain  no  doubt.    I  told 

26  Portions  of  the  opinions  of  Pollock,  C.  B.,  and  Martin,  B.,  discussing  the 
applicability  of  the  statute  of  fraucls,  and  the  concurring  opinion  of  Bram- 
well,  B.,  are  omitted.    Alderson,  B.,  concurred. 


Sec.  2)  CONTRACT  ILLEGAL  209 

the  jury  that  if  the  plaintiff  agreed  to  print  the  dedication  and  the  trea- 
tise, and  so  undertook  to  print  that  which  he  knew  to  be  libellous,  and 
afterwards  said  that  he  would  not  print  both;  in  such  case  he  could 
not  recover.  I  think  his  right  to  recover  rests  entirely  on  this  ground, 
that  he  had  been  furnished  with  the  treatise  without  the  dedica- 
tion. The  dedication  was  afterwards  sent,  but  he  had  no  opportuni- 
ty of  reading  it  until  after  it  was  printed ;  he  then  discovered  that 
it  was  libellous,  and  refused  to  permit  the  defendant  to  have  it.  I 
think  that  if  a  contract  is  bona  fide  entered  into  by  a  printer  to  print  a 
work  consisting  of  two  parts,  and  at  the  time  he  enters  into  the  con- 
tract he  has  no  means  of  knowing  that  one  part  is  unlawful,  and  he 
executes  both,  but  afterwards  suppresses  that  which  is  unlawful, 
there  is  an  implied  undertaking  on  the  part  of  the  person  employing 
him  to  pay  for  so  much  of  the  work  as  is  lawful.  For  these  reasons 
I  think  that  the  rule  ought  to  be  discharged. 

Martin,  B.  I  am  of  the  same  opinion.  *  *  *  j  think  that  the 
plaintiff  was  employed  to  do  work  and  labour,  and  supply  materials, 
and  for  that  he  is  entitled  to  be  paid.     *     *     * 

With  respect  to  the  other  point,  I  agree  that  as  soon  as  a  printer 
discovers  the  objectionable  nature  of  the  work  which  he  is  employed 
to  print,  he  ought  to  stop,  and  that  he  would  not  be  entitled  to  recover 
for  work  done  after  he  made  the  discovery.  But  I  cannot  doubt  that  in 
this  case,  although  the  contract  has  never  been  performed,  yet  as 
the  work  was  commenced  on  the  retainer  of  the  defendant,  and  in 
ignorance  that  part  of  it  was  unlawful,  a  duty  arises  to  pay  the  plaintiff 
for  that  part  which  he  has  performed.  It  is  like  one  of  those  trans- 
actions where  a  person  accepts  goods  not  made  according  to  con- 
tract, in  which  case  the  law  implies  a  promise  to  pay  for  them ;  though 
perhaps  the  better  expression  would  be,  "a  duty  arises  to  pay  for 
them,"  for  the  true  ground  of  the  right  to  recover  is,  that  such  a  state 
of  circumstances  has  arisen  that  in  point  of  law  there  is  a  duty  to 
pay.     *     *     * 

Rule  discharged. ^^ 

27  In  Oom  V.  Bruce,  King's  Bench  (ISIO)  12  East,  225,  insurance  was  made 
on  goods  shipped  from  a  port  in  Russia  to  London,  by  an  agent  residing  in 
London  for  a  Russian  subject  residing  abroad.  The  insurance  was,  in  fact, 
made  after  the  commencement  of  hostilities  by  Russia  against  England,  but 
before  the  knowledge  of  it  reached  England,  and  after  the  ship  had  sailed  and 
had  been  seized  and  confiscated.  Held,  that  although  the  policy  was  void,  the 
agent  was  entitled  to  the  return  of  the  premiums  i^iid ;  Lord  Ellenborough, 
C.  J.,  saying:  "Here  the  plaintiffs  had  no  knowledge  of  the  commencement  of 
hostilities  by  Russia,  when  they  effected  this  insurance;  and,  therefore,  no 
fault  is  imputable  to  them  for  entering  into  the  contract ;  and  there  is  no 
reason  why  they  should  not  recover  back  the  premiums  which  they  have  paid 
for  an  insurance  from  which,  without  any  fault  imputable  to  themselves,  they 
could  never  have  derived  any  benefit." 

See,  also,  Bloxsome  v.  Williams  (1S24)  3  B.  &  C.  232,  where  Bayley.  J.,  said, 
as  to  a  contract  for  the  purchase  of  a  horse  alleged  to  have  been  entered  into 
on  Sunday  between  plaintiff  and  defendant  a  horse  trader,  whom  plaintiff 
did  not  know  to  be  a  horse  trader :    "If  the  contract  be  void  as  falliag  within 


270 


BENEFITS  UNDER  CONTRACT  PARTIALLY   PERFORMED         (Ch.  3 


VISCHER  V.  YATES. 

(Supreme  Court  of  New  York,  1814.     11  Jobns.  23.) 

This  was  an  action  of  assumpsit  for  money  had  and  received  to  the 
use  of  the  plaintiff.  Plea,  non  assumpsit.  The  cause  was  tried  at  the 
Albany  circuit,  in  October,   1813,  before  Mr.  Justice  Thompson. 

The  plaintiff,  in  April,  1813,  deposited  with  Joseph  Alexander,  as 
his  agent,  500  dollars,  to  bet  on  the  approaching  election  of  the  gov- 
ernor of  this  state.  Before  the  election  took  place,  to  wit,  on  the  17th 
of  April,  Alexander  and  Philip  S.  Parker  made  a  bet  of  2,500  dollars, 
and  deposited  the  money  with  the  defendant,  who  delivered  to  each 
of  them  a  certificate  in  writing,  as  follows:  "This  may  certify  that 
Philip  S.  Parker  has  deposited  with  me  $2,500,  and  Joseph  Alexander 
has  deposited  with  me  the  like  sum ;  and  in  case  Stephen  Van  Rens- 
selaer is  elected  Governor  of  the  state  of  New  York,  at  the  ensuing 
election,  then  I  am  to  pay  the  above  two  sums  to  Joseph  Alexander; 
and  in  case  Daniel  D.  Tompkins  is  elected  governor  as  aforesaid,  then 
I  am  to  pay  the  said  sums  to  Philip  S.  Parker:  such  payments  to  be 
made  immediately  after  the  votes  are  canvassed.  April  17,  1813.  John 
W.  Yates."  The  $500  left  with  Alexander,  by  the  plaintiff",  was  part 
of  the  sum  so  deposited ;  the  residue  belonged  to  four  other  persons ; 
and  Alexander  informed  the  defendant  and  Parker,  at  the  time,  that 
the  money  so  deposited  by  him  was  not  his  own,  but  that  he  made 
the  bet  as  agent  for  others,  whose  names,  however,  he  did  not  then 
mention.  On  the  31st  of  May,  1813,  Alexander  gave  a  written  notice 
to  the  defendant,  mentioning  the  names  of  the  persons  to  whom 
the  money  deposited  by  him  belonged,  and  specifying  the  particular 
sums  belonging  to  each  respectively.  After  this  notice,  the  plaintiff 
demanded  the  $500  belonging  to  him,  from  the  defendant,  who  admit- 
ted he  had  the  money  in  his  possession,  but  refused  to  deliver  it  to 
the  plaintiff.  In  the  meantime,  May,  1813,  the  election  had  been  held 
and  Daniel  D.  Tompkins  was  elected  governor,  which  fact  was  cer- 
tified by  the  official  canvassers  of  the  vote  on  June  1st,  1813, 

The  jury  found  a  verdict  for  the  plaintiff  for  $500,  with  interest, 

the  statute,  then  the  plaintiff,  who  is  not  a  particeps  criminis,  may  recover 
back  his  money,  because  it  was  paid  on  a  consideration  which  has  failed." 

But  see  Harse  v.  Pearl  Life  Assurance  Co.,  [19041  1  K.  B.  558,  whei*e  the 
Court  of  Appeal  held  that  premiums  paid  by  plaintiff  upon  a  policy  of  insur- 
ance upon  the  life  of  his  mother  (an  invalid  insurance  for  lack  of  insurable 
interest  in  plaintiff)  could  not  be  recovered  back  although  plaintiff  had  in  good 
faith  acted  in  reliance  on  the  representation  of  defendant's  agent  that  such 
a  policy  was  valid ;  Collins,  M.  R.,  saying :  "The  statement  made  by  the  agent 
was  not  a  statement  of  fact,  but  one  of  the  law,  and  was  made  innocently, 
as  the  jury  have  found.  I'nless  there  can  be  introduced  the  element  of  fraud, 
duress,  or  oppression,  or  difference  in  the  position  of  the  parties  which  created 
a  fiduciary  relationship  to  the  plaintitf  so  as  to  make  it  inefjuitable  for  the 
defendants  to  insist  on  the  bargain  that  they  had  made  mth  the  plaintiff, 
he  is  in  the  position  of  a  person  who  has  made  an  illegal  contract  and  has 
sustained  a  loss  in  consequence  of  a  misstatement  of  law,  and  must  submit 
to  that  loss." 


Sec.  2)  CONTRACT   ILLEGAL  271 

subject  to  the  opinion  of  the  court,  on  a  case  containing  the  facts 
above  stated;  and  it  was  agreed  that  either  party  might  turn  the 
case  into  a  special  verdict,  for  the  purpose  of  bringing  a  writ  of 
error. 

Kent,  C.  J.^*  *  *  *  ^y^^  ^vager  in  this  case  was  illegal.  This 
was  so  decided  in  Bunn  v.  Riker,  4  Johns.  426,  4  Am.  Dec.  292,  and . 
that  decision  was  afterwards  repeated  in  Lansing  v.  Lansing,  8  Johns. 
454.  And  when  we  consider  the  importance  of  popular  elections  to 
the  constitution  and  liberties  of  this  country,  and  that  tlie  value  of  the 
right  depends  upon  the  independence,  moderation,  discretion,  and 
purity  with  which  it  is  exercised  we  cannot  but  be  disposed  to  cher- 
ish a  decision  which  declares  gambling  upon  such  elections  to  be  illegal, 
as  being  founded  in  the  clearest  and  most  incontestable  principles  of 
public  policy.^ ^  Here  was,  then,  an  illegal  contract,  and  the  plaintiff, 
by  his  agent,  deposited  500  dollars  with  the  defendant,  as  a  stake- 
holder, to  be  hazarded  at  the  governor's  election.  If,  after  the  de- 
termination of  the  event  against  the  plaintiff,  the  money  had  actually 
been  paid  over  to  the  winner  with  the  plaintiff's  consent,  or  perhaps 
without  notice  to  the  defendant  to  the  contrary,  the  plaintiff  could  not 
have  sustained  an  action  against  the  winner  to  recover  back  the  de- 
posit. This  was  so  decided  in  Howson  v.  Hancock,  8  Term  Rep.  575, 
and  Lord  Kenyon  said,  in  that  case,  that  there  was  no  instance  of  such 
an  action  being  maintained.  The  case,  then,  of  Lacaussade  v.  White,  in 
7  Term  Rep.  525,  (and  which  appears  to  be  very  imperfectly  re- 
ported,) was  either  an  action  against  the  stakeholder,  before  the  money 
was  paid  over,  as  Lord  Kenyon  understood  it,  or  it  was  corrected 
and  overruled  by  the  case  of  Howson  v.  Hancock. 

There  is  also  a  decision  in  this  court,  in  exact  conformity  with  the 
latter  case.  McCuUum  v.  Gourlay,  8  Johns.  147.  But  the  present 
action  is  not  against  the  winner,  after  the  money  has  been  paid,  but 

28  Portions  of  the  opinion  are  omitted. 

29  Wagering  Contracts. — "The  rule  at  the  common  law  was  that  all  wager- 
ing contracts  that  were  contrary  to  good  morals  or  public  policy  were  illegal 
and  void.  The  courts  of  England  at  an  early  day  held  that  betting  on  a  horse 
race  was  not  opposed  to  good  morals.  The  courts  of  that  country  reluctantly 
followed  this  early  precedent,  until  the  common  law  interpretation  of  wager- 
ing contracts  was  changed  by  the  statutes  of  S  and  9  Victoria,  which  made  all 
contracts  of  wager  void.  Is  betting  on  the  result  of  a  race  contrary  to  good 
morals?  We  are  not  bound  by  the  decisions  of  the  courts  of  England,  in  deter- 
mining that  question.  Whether  a  thing  in  the  eyes  of  the  law  is  moral  or 
immoral  may  depend  largely  upon  when  and  where  it  occurred.  An  act  may 
be  upheld  as  moral  in  one  country  and  be  regarded  as  immoral  in  another.  A 
wa,ger  contract  might  have  been  sustained  a  hundi-ed  years  ago  as  being  iu 
conformity  with  good  morals,  and  be  condemned  today  as  immoral.  In  this 
country,  betting  on  a  race  is  now  generally  regarded  as  against  sound  morals. 
As  a  general  rule,  the  courts  of  this  country,  in  the  more  recent  decisions,  have 
refused  to  enforce  all  wagering  contracts,  even  though  they  are  not  declared 
illegal  by  statute.  Such  contracts  are  certainly  against  good  morals,  a  detri- 
ment to  society,  and,  under  the  principles  of  the  common  law  are  illegal  and 
void."  Deaver  v.  Bennett  (1S90)  29  Neb.  812,  81G,  46  N.  W.  161,  26  Am.  iSt. 
Eep.  415. 


272  BENEFITS   UNDER   CONTRACT   PARTIALLY   PERFORMED  (Cll.  3 

it  is  against  the  stakeholder  before  the  money  has  been  paid,  and 
after  notice  to  the  stakeholder  not  to  pay  it  over,  and  it  falls  within  the 
case  of  Cotton  v.  Thurland,  5  Term  Rep.  405.  That  was  the  case  of 
a  wager  deposited  with  a  stakeholder,  upon  the  event  of  a  battle  to  be 
fought  between  the  plaintiff  and  a  third  person.  The  battle  was 
fought,  and  notice  was  then  given  to  the  defendant  not  to  pay  over 
the  money ;  and  it  was  held  by  the  court  of  K.  B.  that  the  action  lay 
against  the  stakeholder  to  recover  back  the  deposit,  as  the  money  was 
still  in  his  hands,  and  he  was  answerable  to  some  person  for  the  mon- 
ey, and  had  no  conscience  on  his  part  to  retain  it.  This  case  has  never 
been  contradicted  or  questioned  ;  and  it  is  precisely  in  point.  There  is 
not  a  decision  to  be  met  with  in  the  English  law  that  is  against  it. 

The  cases  are  generally  between  the  principals  to  the  illegal  con- 
tract; and  the  courts  take  a  distinction  between  contracts  that  are 
immoral  or  criminal,  and  such  as  are  simply  illegal  and  void.  As- 
sistance is  usually  given  to  the  party,  in  the  latter  cases,  to  recover 
back  his  money;  and  this  court  lent  such  assistance  in  the  case  of 
Mount  &  Wardell  v.  Waite,  7  Johns.  434.  The  stakeholder  ought  not 
to  be  pennitted  to  hold  the  money  in  defiance  of  both  parties.  There 
would  be  no  equity  in  such  a  defence,  and  if  the  plaintiff  cannot  recover 
back  the  deposit  in  this  case,  the  winner  cannot  recover  it;  for  that 
would  be  compelling  the  execution  of  an  illegal  contract  as  if  it  were 
legal,  and  would  at  once  prostrate  the  law  that  declares  such  contracts 
illegal.  The  case  of  Edgar  v.  Fowler,  3  East,  222,  is  to  this  effect.  In 
tliat  case  the  premium  for  an  illegal  insurance,  was  considered  by  the 
assured,  and  by  the  broker,  as  paid  to  the  broker  for  the  insurer,  and 
the  policies  were  signed.  The  assured  afterwards  gave  notice  to  the 
broker  "to  hold  the  stakes  deposited  by  him,  in  his  hands,  for  his  use, 
and  not  to  pay  any  money  over;"  and  the  insurer  was  not  permitted 
to  recover  the  premium,  so  admitted  to  be  deposited,  because  it  would 
be  enforcing  an  illegal  contract. 

Much  is  said,  in  some  of  the  cases,  upon  the  distinction  between  ex- 
ecuted and  executory  contracts,  and  that  where  the  plaintiff'  waits,  with- 
out taking  any  step  to  rescind  the  contract  until  the  risk  has  been  run, 
the  courts  will  not  help  him  to  recover  back  the  deposit  money,  but  will 
remain  neutral  between  the  parties.  The  claim  of  the  plaintiff  is  re- 
pelled by  the  maxim,  that  in  pari  delicto  potior  est  conditio  possiden- 
tis. But  this  objection  is  applied  exclusively  to  the  suit  against  the  prin- 
cipal, or  winner;  and  there  is  no  instance  in  which  it  has  been  used 
as  a  protection  to  the  intermediate  stakeholder,  who,  though  an  agent 
in  the  transaction,  is  no  party  in  interest  to  the  illegal  contract.  As 
between  the  plaintiff  and  him  the  maxim  has  no  application.  He  is 
not  in  pari  delicto,  and  the  parties  must  be  equally  criminal,  before 
the  maxim  can  be  applied.  The  stakeholder  cannot  in  good  conscience 
appropriate  the  money  to  his  own  use ;  and  it  was  received  v/ithout 
a  valid  consideration,  and  for  an  illegal  purpose, .  the  plaintiff,  as 
against  him,  has  tlie  preferable  title. 


Sec.  2)  CONTRACT   ILLEGAL  273 

The  action  is  founded  on  the  disaffirmance  of  the  unlawful  contract, 
and  on  the  ground  that  it  is  void,  and  that  the  money  ought  not  to 
pass  to  the  winner.  After  the  event,  it  is  then,  indeed,  too  late  for 
the  loser  to  reclaim  the  money  from  the  winner,  for  then  the  maxim  ap- 
plies ;  but  before  the  event  has  happened,  either  party  may  repent,  and 
recall  the  deposit  money,  even  out  of  the  hands  of  his  opponent.  And 
if  the  money  is  still  with  the  stalceholder,  the  happening  of  the  event 
is  immaterial,  and  either  party  may,  at  any  time,  arrest  it.  These  are 
the  true  distinctions,  and  which  go  to  reconcile  all  the  cases.  "In  il- 
legal transactions  the  money,"  as  Lord  Ellenborough  said  in  Edgar 
V.  Fowler  [3  East.  222],  "may  always  be  stopped  while  it  is  in  transitu 
to  the  person  who  is  entitled  to  receive  it."     *     *     * 

The  English  rule  is  the  true  rule  on  this  subject.  On  the  disaffirm- 
ance of  the  illegal  and  void  contract,  and  before  it  has  been  carried 
into  effect,  and  while  the  money  remains  in  the  hands  of  the  stakehold- 
er, each  party  ought  to  be  allowed  to  withdraw  his  own  deposit.  The 
court  will  then  be  dealing  equitably  with  the  case.  It  will  be  answer- 
ing the  policy  of  the  law,  and  putting  a  stop  to  the  contract  before  it 
is  perfected.  By  denying  the  plaintiff  his  right  of  recovery,  we  should 
condemn  what  is  now  the  acknowledged  English  law,  and  we  should 
infringe  the  spirit  of  many  decisions,  (and  one  of  them  in  this  court,) 
which  have  allowed  premiums  to  be  recovered  back,  when  actually 
paid  over,  where  there  is  no  intrinsic  criminality  in  the  contract.  We 
should  also  find  that  the  practice  of  betting  at  elections  would  be  con- 
tinued, with  all  the  heat  and  corruption  which  it  engenders ;  for  if 
the  plaintiff  cannot,  by  law,  recall  his  deposit  from  the  stakeholder, 
it  will  most  certainly  pass  into  the  hands  of  the  winner.  The  courts 
have  gone  quite  far  enough,  when  they  refuse  to  help  either  party,  as 
against  the  other,  in  respect  to  these  illegal  contracts.     *     *     * 

The  court  are,  accordingly,  of  opinion  that  the  plaintiff  is  entitled 
to  judgment.    Judgment  for  the  plaintiff.^** 

80  The  principal  case  represents  tlie  prevailing  common  law  doctrine. 
Hastelow  v.  Jackson  (1S2S)  S  B.  &  C.  221 ;  McLennan  v.  Whiddon  (1904)  120 
Ga.  666,  48  S.  E.  201;  Tavlor  v.  Moore  (1S9S)  20  Ind.  App.  654,  50  N.  E.  770; 
Fisher  v.  Hildreth  (1875)  117  Mass.  558. 

In  Hastelow  v.  Jackson,  supra,  Littledale,  J.,  said :  "If  two  parties  enter 
into  an  illegal  contract,  and  money  is  paid  upon,  it  by  one  to  the  other,  that 
may  be  recovered  back  before  the  execution  of  the  contract,  but  not  afterwards. 
In  the  case  of  persons  entering  into  such  a  contract  and  paying  money  to  a 
stakeholder,  if  the  event  happens  and  the  money  is  paid  over  without  dispute, 
that  is  considered  as  a  complete  execution  of  the  contract,  and  the  money 
cannot  be  reclaimed;  but  if  the  event  has  not  happened,  the  money  may  be 
recovered.  With  respect  to  a  stakeholder,  there  is  a  third  case,  viz.,  where 
the  event  has  happened,  but  before  the  money  has  been  paid  over,  one  party 
expresses  his  dissent  from  the  payment.  Under  such  circumstances  he  may 
recover  it ;  and  perhaps  it  may  tlien  be  said,  that  although  the  event  has  hap- 
pened, yet  the  contract  is  not  completely  executed  until  the  money  has  been 
paid  over,  and  therefore  the  party  may  retract  at  any  time  before  that  has 
been  done." 

In  Fisher  v.  Hildreth,  supra,  Colt,  J.,  said:  "A  stakeholder  is  a  mere  de- 
positary for  both  parties  of  the  money  advanced  by  them  respectively  with 

TnUBS.QUASl  CONT. — 18 


27i  BENEFITS   UNDER   CONTRACT   PARTIALLY   PERFORMED         (Ch.  3 

WATTS  V.  LYNCH. 
(Supreme  Court  of  New  Hampshire,  1SS6.     64  N.  H.  96,  5  AtL  458.) 

Assumpsit,  to  recover  $50  deposited  by  the  plaintiff  with  a  stake- 
holder, about  November  1,  1884,  upon  a  wager  with  the  defendant  as 
to  the  result  of  the  coming  presidential  election.  The  defendant  won 
the  bet,  and  the  stakeholder  thereupon  paid  over  the  money  to  him. 
Facts  agreed. 

Blodgett,  J.  Section  12  of  chapter  272,  Gen.  Laws  1878,  makes 
void  all  bets  and  wagers  upon  any  question  in  which  the  parties  have 
no  interest  in  the  subject  except  that  created  by  the  wager,  and  section 
13  gives  the  loser  a  right  of  action  against  the  winner  for  any  money 
or  property  won  or  received  by  him  upon  such  bet  or  wager.  Conse- 
quently the  otherwise  fatal  objection  of  particeps  criminis  does  not 
avail  against  the  plaintiff,  and,  as  the  agreed  facts  suggest  no  other 
defense,  nothing  appears  which  precludes  him  from  a  recovery. 

Judgment  for  the  plaintiff.^^ 

a  naked  authority  to  deliver  it  over  upon  the  proposed  contingency.  He  is  not 
regarded  as  a  party  to  the  illegal  contract.  Upon  the  revocation  of  the  au- 
thority the  money  remains  in  his  hands  as  a  naked  deposit  to  the  use  of  the 
parties  depositing  it.  He  cannot  avoid  his  responsibility  to  the  loser  by  after- 
vi^ards  paying  the  whole  of  it  to  the  winner." 

The  p'-incipal  case  (Vischer  v.  Yates)  was,  however,  overruled  by  the  New 
York  Court  of  Errors  and  Appeals  in  Yates  v.  Foot  (1814)  12  Johns.  1,  holding 
that  demand  on  the  stakeholder  conies  too  late  when  made  after  the  wager 
has  been  decided,  even  though  the  stake  has  not  yet  been  paid.  Accord: 
Johnston  v.  Russell  (1SG9)  37  Cal.  670;  Connor  v.  Black  (1896)  132  Mo.  150, 
33  S.  W.  783. 

Recovery  against  Winner.— The  amount  of  the  deposit  can  also  be  recov- 
ered from  the  winner,  if  he  received  it  from  the  stakeholder  with  knofwledge 
that  the  stakeholder  has  been  notified  not  to  pay  it  over.  McKee  v.  Mauice 
(1853)  11  Cush.  (Mass.)  357. 

Notice  of  Repudiation  and  Demand.— "Where  the  parties  to  a  wager 
liave  agreed  that  the  stakeholder  shall  determine  who  has  won  the  wager, 
and  pay  the  stakes  to  the  winning  party,  the  stakeholder  may  rely  upon  the 
agreement,  and  pay  the  stakes  to  the  party  in  whose  favor  he  dec-ides,  unless, 
before  the  payment  is  made,  the  losing  party  renounce  the  wager  and  demand 
his  money;  but  a  demand  of  the  stakes,  on  the  ground  that  he  has  won  the 
wager,  is  not  a  repudiation  of  the  wager,  and  will  not  render  the  stakeholder 
liable  for  payment  to  the  other  party."  Okerson  v.  Crittenden  (18S3)  62  Iowa, 
297,  17  N.  W.  528 ;   Patterson  v.  Clark  (1879)  126  Mass.  531. 

Contra:  Hastelow  v.  Jackson  (1828)  8  B.  &  C.  221,  108  Eng.  Rep.  1026; 
Hale  V.  Sherwood  (1873)  40  Conn.  332, 16  Am.  Rep.  37.  ("That  plaintiQ:  demand- 
ed a  greater  sum  than  he  had  deposited,  we  think  is  not  a  reason  why  he 
should  not  be  entitled  to  the  sum  he  actually  did  deposit."  But  see  dissenting 
opinion  of  Park,  J.) 

If  the  race  which  is  the  subject-matter  of  the  wager  be  declared  off,  the 
deposit  cannot  be  recovered  from  the  stalioholder  without  a  previous  demand. 
Jones  V.  Cavanaugh  (1889)  149  Mass.  124,  21  N.  E.  306. 

31  "If  the  statute  had  not  given  an  action  to  recover  money  lost  at  play,  it 
is  quite  certain  that  on  the  general  principles  of  law  a  suit  for  such  a  purpose 
could  not  be  maintained.  The  winner's  exemption  from  suit  and  recovery 
would  not  result,  however,  from  any  title  in  himself  to  the  money  or  thing 
won  and  received  by  him.  On  the  contrary,  the  whole  transaction  being  un- 
lawful, he  is  bound  in  conscience  to  make  restoration,  and  would  be  bound 
in  law  to  do  so,  but  for  a  peculiar  maxim  having  the  force  of  law,  and  accord- 


Sec.  2)  CONTRACT  ILLEGAL  275 

EASTERN  EXPANDED  METAL  CO.  v.  WEBB  GRANITE  & 

CONST.  CO. 

(Supreme  Judicial  Court  of  Massachusetts,  1907.     195  Mass.  356,  81  N.  E.  251, 

11  Ann.  Cas.  631.) 

Actions  by  the  Eastern  Expanded  Metal  Company  against  the  Webb 
Granite  &  Construction  Company  and  by  the  Webb  Granite  &  Con- 
struction Company  against  tlie  Eastern  Expanded  Metal  Company. 
From  the  judgment,  said  Webb  Granite  &  Construction  Company 
brings  exceptions. 

Knowlton,  C.  J.*"  These  are  cross-actions  growing  out  of  the 
furnishing  of  labor  and  materials  by  the  plaintiff  in  tlie  first  action, 
hereinafter  called  the  plaintiff,  for  the  defendant  in  that  action,  which 
is  hereinafter  called  the  defendant,  in  the  erection  of  the  Hotel  Somer- 
set on  Commonwealth  avenue  in  Boston.  The  first  suit  was  brought 
upon  an  account  annexed,  and  the  second  is  for  a  breach  of  a  contract 
in  writing  under  which  the  work  was  done.  This  contract  called  for 
the  construction  by  the  plaintiff  of  the  steel  frame,  the  floors,  the  roof 
and  some  other  parts  of  the  building,  "in  conformity  with  the  require- 
ments of  the  statute  regulating  the  construction,  maintenance  and  in- 
spection of  buildings  in  the  city  of  Boston,  and  to  the  satisfaction  of 

ing  to  which  the  courts  withhold  their  remedial  processes  from  each  of  the 
offending  parties.  'In  pari  delicto  potior  est  conditio  defendentis'  is  the  rule 
in  such  cases;  but  this  is  a  rule  which  acknowledges  no  just  or  legal  title  in 
the  defendant.  It  assumes,  on  the  other  hand,  that  the  money  or  thing  in  his 
possession  has  been  acquired  in  violation  of  the  law,  and  it  then  denies  a  rem- 
edy to  the  other  party  because  he  has  been  an  equal  sharer  in  the  same  of- 
fence. Thus  the  parties  are  left  where  the  law  finds  them,  and  the  defend- 
ant prevails,  not  upon  his  own  merits  or  title,  but  because  the  plaintiff  is 
deemed  unworthy  to  be  heard  in  the  particular  case.  Nellis  v.  Clark,  20 
Wend.  (N.  Y.)  24,  and  cases  cited ;  s.  c.  in  Court  of  Errors,  4  Hill  (N.  Y.) 
424.  This  maxim  of  the  common  law  which  would  leave  the  loser  at  play 
vrithout  a  remedy,  is  abrogated  in  reference  to  gaming  transactions,  by  the 
14th  section  of  the  statute  above  quoted.  That  statute  declares  that  the  'per- 
son' who  has  lost  the  money  may  recover  it  back  if  he  sues  within  a  specified 
time.  In  a  literal  and  exact  sense,  the  statute  gives  the  action ;  because  with- 
out it  the  suit  could  not  be  maintained.  Yet  the  clause  does  not  so  much 
create  the  right  as  it  removes  the  ditficulty  which  obstructed  the  remedy.  The 
right  in  such  a  case  rests  upon  the  illegality  and  the  voidness  of  the  transac- 
tion ;  upon  the  absence  of  any  just  or  legal  title  in  the  defendant  to  the  money 
or  thing  in  controversy.  The  unworthiness  of  the  plaintiff  to  approach  the 
altar  of  justice,  was  the  only  thing  which  stood  in  the  way  of  the  remedy. 
That  ditficulty  being  removed  by  the  I^egislature,  I  see  no  reason  why  the  right 
to  demand  and  recover  money,  staked  and  lost  in  gaming,  is  not  as  much  a 
part  of  a  man's  estate  as  any  other  right  in  action  which  he  can  possess.  And 
if  this  be  so,  why  is  not  such  a  demand,  like  any  other,  capable  of  being  trans- 
ferred by  act  of  the  party  or  of  the  law?"  (accordingly  the  court  held  that 
such  right  of  action  was  assignable).  Meech  v.  Stoner  (1859)  19  N.  Y.  26,  per 
Comstock,  J. 

If  the  statute  so  provides,  recovery  may  be  had  against  the  stakeholder, 
although  he  has  paid  the  winner  before  notice  of  repudiation  by  the  loser. 
Van  Pelt  v.  Schauble  (1902)  68  N.  J.  Law,  6.^,8,  54  Atl.  437. 

32  Portions  of  the  opinion,  citing  authorities  and  discussing  a  collateral 
matter,  are  omitted. 


276  BENEFITS  UNDER   CONTRACT   PARTIALLY   PERFORMED  (Ch.  3 

the  building  commissioner  of  said  city,"  all  as  shown  in  the  drawings 
prepared  by  the  architect,  etc.  Section  64  of  St.  1892,  p.  489,  c.  419, 
regulating  the  construction  of  buildings  in  tlie  city  of  Boston,  forbids 
under  a  penalty  tlie  erection  of  a  building,  of  the  class  to  which  the 
Hotel  Somerset  belongs,  with  a  roof  having  a  pitch  of  more  than  20 
degrees.  The  drawings  of  the  architect  made  the  roof  of  this  building 
have  a  pitch  of  30  degrees.  The  contract,  by  a  general  provision,  re- 
quired that  the  building  should  be  erected  in  conformity  with  this 
statute,  but  in  the  particular  provisions  as  to  the  roof  it  called  for  a 
building  whose  erection  was  forbidden  by  the  statute.  Out  of  this 
part  of  tlie  contract  relative-  to  the  roof  the  controversy  between  the 
parties  has  arisen. 

The  jury,  in  answer  to  a  question,  have  found  by  their  verdict  tliat 
the  plaintiff,  when  the  contract  was  executed,  did  not  know  that  the 
agreement  called  for  a  roof  with  a  pitch  of  more  than  20  degrees. 
The  contract  was  executed  on  November  8,  1897,  and  on  December 
17,  1897,  it  was  modified  by  a  supplemental  contract  which  does  not 
affect  the  questions  before  us.  On  Aiarch  25,  1898,  tlie  plaintiff's  at^ 
tention  having  been  called  to  the  pitch  of  the  roof,  it  wrote  to  the  de- 
fendant in  regard  to  it,  and  from  that  date  until  May  22,  1898,  there 
were  negotiations  by  letters  and  interviews  between  the  parties  in  ref- 
erence to  this  matter,  to  see  if  some  arrangement  could  be  made  that 
would  be  satisfactory  to  both.  On  this  last  date,  the  defendant  having 
finally  insisted  that  the  roof  should  be  constructed  with  a  pitch  of  30 
degrees  according  to  the  contract,  and  the  plaintiff  having  declined  to 
violate  the  law  in  tliis  particular,  the  plaintiff  discontinued  work,  and 
the  defendant  caused  the  construction  to  be  completed  by  another 
party. 

The  presiding  justice  ruled  that  the  contract  was  illegal,  and  that 
the  defendant  could  not  recover  damages  in  the  cross-action  for  the 
breach  of  it,  nor  avail  itself  of  this  breach  as  a  defense  to  tlie  plaintiff's 
claim  in  the  original  action.  The  exception  of  the  defendant  to  this 
ruling  presents  the  first  question  for  our  consideration. 

While  this  statute  was  enacted  in  the  interest  of  the  public  with  a 
prescribed  penalty  for  the  violation  of  its  provisions  and  while  it  gives 
jurisdiction  in  equity  for  its  enforcement,  we  think  tliat  it  plainly  ren- 
ders illegal  the  acts  which  it  purports  to  prohibit,  and  that  it  forbids 
these  acts,  instead  of  prescribing  regulations  that  are  merely  directory. 
*  *  *  We  are  of  opinion  that  the  judge  was  right  in  ruling  that 
the  contract  was  not  enforceable  in  favor  of  the  defendant,  either  as  a 
foundation  for  a  cross-action  or  as  a  defense  to  the  original  action. 

The  next  question  is  whether  the  jury  could  be  permitted  to  find  for 
the  plaintiff  on  the  account  annexed,  upon  its  disaffirmance  of  the  con- 
tract under  which  the  labor  and  materials  were  furnished. 

It  has  been  held  in  many  cases  that,  where  the  matters  called  for  in 
the  contract  that  render  it  illegal  do  not  involve  moral  turpitude,  but 
are  merely  mala  prohibita,  and  while  the  contract  remains  executory, 


Sec.  2)  CONTRACT  ILLEGAL  277 

either  party  may  disaffirm  it  on  account  of  its  illegality  and  recover 
back  money  or  property  that  he  has  advanced  under  it.  If  the  con- 
tract has  been  executed  the  court  will  not  relieve  either  party  from 
the  consequences  of  his  own  violation  of  law.  But  so  long  as  it  is 
entirely  unexecuted  in  that  part  which  the  law  forbids,  there  is  a  locus 
pcEnitentias.  The  doctrine  is  stated  very  fully  in  White  v.  Franklin 
Bank,  22  Pick.  181.     *     *     * 

Most  of  these  cases  relate  to  the  recovery  of  money  or  property  that 
has  been  advanced  under  the  illegal  contract  which  is  subsequently 
repudiated.  In  the  present  case  labor  and  materials  for  the  improve- 
ment of  real  estate  were  furnished  by  the  plaintiff.  In  this  common- 
wealth, when  labor  and  materials  are  furnished  and  used  upon  real 
estate  under  a  special  contract  and  for  reasons  which  are  not  preju- 
dicial to  the  plaintiff  the  contract  becomes  of  no  eft'ect,  it  is  held  that 
the  party  furnishing  them  may  recover  upon  a  quantum  meruit,  for 
their  value  as  a  benefit  to  the  real  estate.  A  familiar  illustration  of 
this  rule  is  found  in  the  cases  where  a  contractor,  acting  in  good  faith 
in  an  effort  to  perform  his  contract,  fails  to  complete  it  entirely,  as  in 
Hayward  v.  Leonard,  7  Pick.  181,  19  Am.  Dec.  268,  and  Blood  v.  Wil- 
son, 141  Mass.  25,  6  N.  E.  362.  Another  illustration  is  when  it  be- 
comes impossible  to  perform  the  contract  because  the  subject  to  which 
it  relates  is  destroyed,  by  fire  or  otherwise,  without  the  fault  of  either 
party.  Butterfield  v.  Byron,  153  Mass.  517,  27  N.  E.  667,  12  L.  R.  A. 
571,  25  Am.  St.  Rep.  654;  Angus  v.  Scully,  176  Mass.  357,  57  N.  E. 
674,  49  L.  R.  A.  562,  79  Am.  St.  Rep.  318;  Young  v.  Chicopee,  186 
Mass.  518,  72  N.  E.  63. 

We  are  of  opinion  that,  when  labor  and  materials  have  been  furnish- 
ed upon  real  estate  under  a  contract  which  contains  an  illegal  element 
under  a  prohibitory  statute,  and  when  the  contract  remains  entirely 
executory  in  that  part  which  is  illegal,  and  is  disaffirmed  because  of  its 
illegality,  the  disaffirming  party  has  the  same  right  to  have  compensa- 
tion for  the  benefit  conferred  upon  the  real  estate  that  he  would  have 
to  recover  for  money  or  property  received  by  the  other  party  before 
the  disaffirmance  of  such  a  contract.  This  is  an  application  of  the 
principle  which  governs  the  decisions  in  the  cases  cited  above. 

In  the  present  case,  under  the  instructions  of  the  court,  the  jury 
must  have  found  that  the  contract  was  disaffirmed  by  the  plaintiff  be- 
cause of  its  illegality,  and  that,  in  reference  to  the  objectionable  part, 
it  remained  wholly  executory.  We  are  of  opinion  that  the  construc- 
tion of  the  lower  portions  of  the  building,  which  were  entirely  in  con- 
formity with  the  statute,  did  not  deprive  the  plaintiff  of  its  right  to 
repudiate  the  contract  before  doing  anything  which  was  illegal,  es- 
pecially as  it  has  been  found  that  the  plaintiff  was  ignorant  of  the 
illegality  when  it  executed  the  contract,  and  as  it  was  easy  to  change 
the  plan  for  the  roof  and  make  it  conform  to  the  statute  when  the 
plaintiff  left  the  work.  In  many  of  the  cases  cited  above  some  action 
had  been  taken  by  the  plaintiff  under  the  contract  before  the  disaf- 


278      BENEFITS  UNDER  CONTRACT  PARTIALLY  PERFORMED    (Ch.  3 

firmance  of  it,  as  in  the  cases  of  recovery  of  money  wagered  and  put 
in  the  hands  of  a  stakeholder.  The  important  point  in  most  of  the  de- 
cisions is  that  the  part  of  the  contract  directly  in  violation  of  law  had 
not  been  executed.  The  bringing  of  a  suit  for  the  recovery  of  money 
or  property  advanced  necessarily  implies  that  something  has  been  done 
under  the  contract. 

The  fact  that  some  work  was  done  by  an  engineer  of  the  plaintiff  on 
the  plans  for  the  roof,  which  did  not  form  a  part  of  the  construction 
of  the  building,  and  for  which  no  claim  was  made  in  this  suit,  is  imma- 
terial. This  was  done  in  connection  with  negotiations  for  a  new  ar- 
rangement between  the  parties,  which  occupied  a  considerable  time. 
These  plans  were  not  turned  over  to  the  defendant.     *     *     ♦ 

In  each  case  the  entry  is :    Exceptions  overruled.'* 


GRAY  V.  ROBERTS. 

(Supreme  Court  of  Kentucky,  1S20.     2  A.  K.  Marsh.  208,  12  Am.  Dec.  383.) 

Thb  Chief  Justice  delivered  the  opinion  of  the  court. 

This  was  an  action  of  assumpsit  for  money  had  and  received,  and 
was  tried  on  the  plea  of  non  assumpsit. 

On  the  trial,  it  appeared  that  the  plaintiff  had  executed  four  notes 
for  twenty  dollars  each,  as  the  price  of  a  lottery  ticket,  in  a  lottery  set 
on  foot  by  David  Williamson,  and  that  he  had  paid  to  the  defendant, 
as  agent  for  Williamson,  the  amount  of  the  notes,  a  part  of  which 
was  paid  voluntarily  and  without  suit,  and  a  part  after  judgment  had 
been  rendered  against  him  therefor  by  a  justice  of  the  peace.  It  also 
appeared  that  Williamson,  previous  to  setting  on  foot  his  lottery,  had 
executed  a  deed  conveying  all  the  property  of  which  the  prizes  in  his 
scheme  of  a  lottery  were  to  consist,  to  trustees  for  the  payment  of  his 
debts,  and  that  the  trustees  had,  since  the  drawing  of  the  lottery,  sold 
the  property,  and  that  it  was  not  sufficient  to  pay  the  debts. 

On  the  motion  of  the  defendant,  the  circuit  court  instructed  the  jury 
that  the  plaintiff  could  not  maintain  the  action  for  the  money  paid  ei- 
ther before  or  after  judgment,  although  it  should  appear  that  the 
money  had  not  been  paid  over  by  the  defendant.     The  jury  found  a 

83  In  Kearley  v.  Thompson  (1890)  24  Q.  B.  D.  742,  the  defendants  were  solici- 
tors to  the  petitioning  creditor  in  certain  bankruptcy  proceedings,  and  had 
incurred  costs  which  were  to  be  paid  out  of  the  estate.  The  plaintiff,  a  friend 
of  the  bankrupt,  offered  to  pay  to  the  defendants  £40.  for  these  costs  (which 
had  not  been  paid  owing  to  want  of  assets),  on  their  undertaking  not  to  appear 
at  the  public  examination  of  the  bankrupt,  and  not  to  oppose  an  order  for  his 
discharge.  The  defendants,  with  the  consent  of  their  client,' agreed  to  this, 
and  received  the  money.  They  did  not  appear  at  the  public  examination  ot 
the  bankrupt,  and,  before  any  application  for  his  discharge  had  been  made, 
the  plaintiff  brought  an  action  to  recover  back  the  money  from  the  defend- 
ants. Fry,  L.  J.,  held  that  the  contract  was  illegal,  in  that  it  was  an  inter- 
ference with  the  course  of  justice  and  that  the  partial  performance  of  it  pre- 
vented the  plaintiff  from  recovering  back  the  money  paid  under  it. 

See  also  Norbeck  &  Nicholson  Co.  v.  State  (1913)  32  S.  D.  1S9,  112  N.  W.  847. 


Sec.  2)  CONTRACT   ILLEGAL  279 

verdict  according  to  the  instructions  of  the  court,  and  a  judgment  be- 
ing rendered  thereon,  the  plaintiff  appealed  to  this  court. 

There  is  no  doubt  that  the  contract  for  the  purchase  of  the  lottery 
tickets  was  void,  and  that  the  execution  of  the  notes  for  the  price 
imposed  upon  the  plaintiff  no  legal  obligation  to  pay  the  money.  But 
whether,  after  the  money  was  paid,  he  can  sustain  an  action  to  recover 
it  back,  is  a  distinct  question ;  for  it  is  not  in  every  case  where  money 
has  been  paid  upon  a  contract  which  is  void,  that  such  an  action  can 
be  sustained.    It  may,  however,  in  some  cases  be  done. 

If  both  parties  are  equally  guilty  of  a  breach  of  tlie  law,  a  court  of 
justice  cannot  interpose  its  aid  in  behalf  of  either;  for  it  is  a  settled 
rule,  that  pari  delicto  potior  est  conditio  defendentis,  but  where  the 
transaction  is  in  violation  of  a  law  made  for  the  protection  of  one 
party  against  the  acts  of  the  other,  they  are  not  equally  guilty,  and 
the  innocent  party,  when  he  has  paid  money  upon  such  a  transaction, 
may,  without  doubt,  recover  it  back.  Of  this  character  are  usurious 
loans,  a  familiar  example,  in  which,  according  to  every  day's  practice, 
the  borrower  is  permitted  to  recover  back  the  excess  he  may  have  paid 
beyond  the  principal  and  legal  interest,  and  the  sale  of  a  lottery  ticket, 
in  a  lottery  not  authorized  by  law,  is,  we  apprehend,  a  transaction  of 
the  same  character.  The  act  of  1769,  for  preventing  and  suppressing 
private  lotteries,  which  was  the  law  in  force  at  the  time  of  the  contract 
in  this  case,  appears  manifestly,  from  the  preamble  of  the  act,  to  have 
been  designed  by  the  legislature  to  protect  the  interest  of  others  against 
the  devices  of  those  who  should  set  up  a  lottery;  and  the  enacting 
clause  is  made  to  operate  upon  the  latter  only.  For  it  is  only  persons 
who  set  up  the  lottery,  and  not  those  who  purchase  the  tickets,  that 
offend  against  the  provisions  of  the  act. 

We  are,  therefore,  of  opinion  that  the  plaintiff  in  the  circuit  court 
had  a  right  to  recover,  and  that  the  circuit  court  erred  in  instructing 
the  jury  otherwise.  But  this  recovery  must  be  restricted  to  the  money 
he  paid  without  suit,  and  cannot  be  extended  to  that  which  he  paid  in 
satisfaction  of  the  judgment  before  a  justice  of  the  peace. 

The  judgment  having  been  given  by  a  tribunal  of  competent  juris- 
diction, it  is  conclusive  upon  the  parties,  and  they  cannot  be  permitted 
to  enquire  into  the  merits,  or  to  impeach  its  justice  in  another  suit. 

The  judgment  must  be  reversed  with  costs,  and  the  cause  remanded, 
that  a  new  trial  may  be  had  not  inconsistent  with  this  opinion.^* 

34  Accord:  Jacques  v.  Goligbtly  (1776)  2  Win.  Bl.  1073;  Browning  v.  Morris 
(1778)  Cowp.  790  (semble)  ;  Becker  v.  Wilcox  (190S)  81  Neb.  470,  IIG  N.  W. 
160,  16  L.  R.  A.  (N.  S.)  571,  129  Am.  St.  Rep.  690. 

In  Browning  v.  Morris,  supra.  Lord  Mansfield  said:  "The  rule  is,  in  pari 
delicto,  potior  est  conditio  defendentis:  and  there  are  several  other  maxims 
of  the  same  kind.  Where  the  contract  is  executed,  and  the  money  paid  in 
pari  delicto,  this  rule,  as  Mr.  Dunning  contendcnl.  certainly  holds:  and 
the  party  who  has  paid  it,  cannot  recover  it  back.  For  instance  in  bribery, 
if  a  man  pays  a  sum  of  money  by  way  of  a  bribe,  he  can  never  recover  it 
in  an  action;  because  both  plainlilf  and  defendant  are  equally  criminal. 
But,  where  contracts  or  transactions  are  prohibited  by  positive  statutes, 
for  the  sake  of  protecting  one  set  of  men   from  another  set  of  men ;    the 


280      BENEFITS  UNDER  CONTRACT  PARTIALLY  PERFORMED    (Ch.  3 

LADD  V.  BARTON. 
(Supreme  Court  of  New  Hampshire,  ISSG.     64  N.  H.  613,  6  Atl.  483.) 

Assumpsit,  for  $100,  money  had  and  received.  Facts  found  by  the 
court. 

Dos,  C.  J.  The  defendant  obtained  the  pension  for  the  plaintiff,  and 
received  $10  from  the  government,  and  $100  from  the  plaintiff.  Both 
parties  understood  that  it  would  be  unlawful  for  the  defendant  to 
receive  for  his  services  in  a  pension  case  a  greater  sum  than  $10,  (Rev. 
St.  U.  S.  §§  4785,  4786,  5485 ;  Act  June  20,  1878  [U.  S.  Comp.  St. 
1913,  §§  9112,  9115,  9114],)  and  that  the  sum  of  $100,  though  paid 
voluntarily,  without  demand  or  undue  influence,  was  paid  and  received 
as  compensation  for  the  defendant's  services  in  the  plaintiff's  case. 
The  amount  of  the  fee  is  fixed  for  the  protection  of  the  pensioner,  as 
the  rate  of  interest  is  fixed  by  the  usury  law  for  the  protection  of  the 
borrower;  and  the  parties  were  not  in  equal  fault.  State  v.  Rand, 
51  N.  H.  361,  12  Am.  Rep.  127.  The  right  of  pensioners  to  recover  in 
such  cases  as  this  is  necessary  for  the  protection  the  statute  was 
intended  to  give  them. 

Judgment  for  tlie  plaintiff." 

one,  from  their  situation  and  condition,  being  liable  to  be  oppressed  or 
imposed  upon  by  the  other;  there,  the  parties  are  not  in  pari  delicto;  and  in 
furtherance  of  these  statutes,  the  person  injured,  after  the  transaction  is 
finished  and  completed,  may  bring  his  action  and  defeat  the  contract.  For  in- 
stance, by  the  Statute  of  ITsury,  taking  more  than  5  per  cent,  is  declared  il- 
legal, and  the  contract  void,  but  these  statutes  were  made,  to  protect  needy 
and  necessitous  persons  from  the  oppression  of  usurers  and  monied  men,  who 
are  eager  to  take  advantage  of  the  distress  of  others;  whilst  they,  on  the 
other  hand,  from  the  pressure  of  their  distress,  are  already  to  come  into 
any  terms,  and,  "5\ith  their  eyes  open,  not  only  break  the  law,  but  complete 
tneir  ruin.  Therefore,  the  party  injured  may  bring  an  action  for  the  excess 
of  interest." 

In  Miehener  v.  Watts  (1911)  176  Ind.  376,  96  N.  E.  127,  36  L.  R.  A.  (N.  S.) 
142,  a  statute  made  it  a  misdemeanor  to  sell  a  patent  right  without  first  filing 
with  the  clerk  of  the  county,  a  copy  of  the  letters  patent  duly  authenticated, 
and  an  affidavit  that  the  same  was  genuine.  The  plaintiff  bought  a  patent 
right  from  the  defendant.  Upon  discovery  that  the  patent  was  not  filed  plain- 
tiff brought  suit  to  recover  the  money  paid  by  him  for  such  patent  right.  The 
court  held  for  plaintiff  saying :  "Where  a  contract  is  prohibited  by  a  positive 
statute,  enacted  to  protect  the  vendee  as  against  the  vendor,  as  in  this  case, 
the  parties  have  been  held  not  to  be  in  pari  delicto,  and  the  person  for  whose 
protection  the  statute  was  enacted  has  been  permitted  to  recover  the  money 
or  property  parted  with  by  him." 

S5  Accord  on  identical  facts:  Smart  v.  White  (1S82)  73  Me.  332,  40  Am.  Rep. 
3.56;  Peters,  J.,  saying:  "The  parties  do  not  stand  in  pari  delicto.  The  pen- 
alty of  the  statute  is  levelled  at  him  and  not  at  her.  The  punishment  is  to  be 
inflicted  upon  the  taker  and  not  upon  the  giver.  She  is  to  be  protected,  not 
punished.  Her  ignorance  of  the  law,  or  her  folly,  if  not  ignorant  of  it.  Is 
excusable,  but  his  is  not.  He  commits  a  wrong;  she  does  not.  She  cannot 
defraud  herself.    The  statute  would  be  nullified  by  a  different  interpretation." 

The  recovery  of  usurious  payments  and  of  illegal  payments  extorted  by  du- 
ress are  considered  in  chapter  V,  section  4,  infra. 


Sec.  2)  CONTRACT  ILLEGAL  281 

WEBB  V.  FULCHIRE. 
(Supreme  Court  of  North  Carolina,  1843.    25  N,  C.  485,  40  Am.  Dec.  419.) 

Appeal  from  the  Superior  Court  of  Law  of  Onslow  County,  at 
Spring  Term,  1843,  his  Honor  Judge  Bailey  presiding. 

This  was  an  action  of  assumpsit,  brought  by  the  plaintiff  to  recover 
the  sum  of  forty  dollars.  The  jury  found  a  verdict  for  the  plaintiff, 
subject  to  the  opinion  of  the  court  on  the  following  facts.  The  de- 
fendant had  three  acorn  cups  and  a  white  ball,  which  he  placed  under 
one  of  the  cups  in  the  presence  of  the  plaintiff.  The  defendant  pro- 
posed to  bet  the  plaintiff  twenty  dollars,  that  he  could  not  tell  which  one 
of  the  three  cups  the  ball  was  under.  The  plaintiff  bet  him  that  he 
could,  and  thereupon  staked  twenty  dollars.  The  plaintiff  pointed  to 
the  cup,  and  bet  that  the  ball  was  under  that  one.  The  defendant 
raised  the  cup  and  the  ball  was  not  there.  The  money  staked  was 
then  paid  over  to  the  defendant  as  being  won  by  him.  In  the  same 
way  the  defendant  won  twenty  dollars  more,  which  was  in  like  man- 
ner paid  over  to  him.  The  court  was  of  opinion  that  the  plaintiff  could 
not  maintain  this  action,  and  set  aside  the  verdict  and  entered  a  non- 
suit.    From  this  judgment  the  plaintiff  appealed. 

RuFFiN,  C.  J.  It  is  not  denied  that  the  law  gives  no  action  to  a 
party  to  an  illegal  contract,  either  to  enforce  it  directly,  or  to  recover 
back  money  paid  on  it  after  its  execution.  Nor  is  it  doubted,  that  mon- 
ey, fairly  lost  at  play  at  a  forbidden  game  and  paid,  cannot  be  recovered 
back  in  an  action  for  money  had  and  received.  But  it  is  perfectly 
certain  that  money,  won  by  cheating  at  any  kind  of  game,  whether 
allowed  or  forbidden,  and  paid  by  the  loser  without  a  knowledge  of 
the  fraud,  may  be  recovered.  A  wager  won  by  such  undue  means  is 
not  won  in  the  view  of  the  law,  and,  therefore,  the  money  is  paid 
without  consideration  and  by  mistake,  and  may  be  recovered  back. 
That,  we  think,  was  plainly  this  case.  The  bet  was,  that  the  plaintiff 
could  not  tell  which  of  the  three  cups  covered  the  ball.  Well,  the 
case  states  that  the  defendant  put  the  ball  under  a  particular  one 
of  the  cups,  and,  then,  that  the  plaintiff'  selected  that  cup,  as  the  one 
under  which  the  ball  was.  Thus  we  must  understand  the  case,  be- 
cause it  states  as  a  fact,  that  the  defendant  "placed  the  ball  under 
one  of  the  cups,"  and  that  the  plaintiff  "pointed  to  the  cup,"  that  is, 
the  one  under  which  he  had  seen  the  ball  put,  as  being  that  which 
still  covered  it.  We  are  not  told  how  this  matter  was  managed,  nor 
do  we  pretend  to  know  the  secret.  But  it  is  indubitable,  that  the  ball 
was,  by  deceit,  not  put  under  the  cup,  as  the  defendant  had  made  the 
plaintiff  believe,  and  under  which  belief  he  had  drawn  him  into  the 
wager;  or  that,  after  it  was  so  placed,  it  was  privily  and  artfully  re- 
moved either  before  or  at  the  time  the  cup  was  raised.  If  the  former 
be  the  truth  of  the  case,  there  was  a  false  practice  and  gross  deception 
upon  the  very  point,  that  induced  the  laying  of  the  wager,  namely, 


282  BENEFITS  UNDER   CONTRACT   PARTIALLY   PERFORMED  (Ch.  3 

that  the  ball  was  actually  put  under  the  cup.  For  clearly,  the  words 
and  acts  of  the  defendant  amount  to  a  representation,  that  such  was 
the  fact;  and  indeed  the  case  states  it  as  the  fact.  Hence,  and  be- 
cause we  cannot  suppose  the  vision  of  the  plaintiff  to  have  been  so 
illuded,  we  rather  presume  the  truth  to  be,  that  the  ball  was  actually 
placed  where  the  defendant  pretended  to  place  it,  that  is  to  say,  under 
the  particular  cup  which  the  plaintiff  designated  as  covering  it.  Then 
the  case  states  that  the  defendant  raised  that  cup,  and  the  ball  was  not 
there ;  a  physical  impossibility,  unless  it  had  been  removed  by  some 
contrivance  and  sleight  of  hand  by  the  defendant.  Unquestionably  it 
was  effected  by  some  such  means ;  for  presently  we  find  the  defend- 
ant in  possession  of  the  ball,  ready  for  a  repetition  of  the  bet  and  the 
same  artifice.  Such  a  transaction  cannot  for  a  moment  be  regarded 
as  a  wager,  depending  on  a  future  and  uncertain  event;  but  it  was 
only  a  pretended  wager,  to  be  determined  by  a  contingency  in  shew 
only,  but  in  fact  by  a  trick  in  jugglery  by  one  of  the  parties,  practised 
upon  the  unknowing  and  unsuspecting  simplicity  and  credulity  of  the 
other.  Surely,  the  artless  fool,  who  seems  to  have  been  alike  bereft 
of  his  senses  and  his  money,  is  not  to  be  deemed  a  partaker  in  the  same 
crime,  in  pari  delicto,  with  the  juggling  knave,  who  gulled  and  fleeced 
him.  The  whole  was  a  downright  and  undeniable  cheat;  and  the 
plaintiff  parted  with  his  money  under  the  mistaken  belief,  that  it  had 
been  fairly  won  from  him,  and,  therefore,  may  recover  it  back. 

The  judgment  of  nonsuit  is  reversed,  and  judgment  for  the  plaintiff 
according  to  the  verdict. 

Per  Curiam.  Judgment  below  reversed  and  judgment  for  the 
plaintiff.^' 


HERMANN  v.  CHARLESWORTH. 

(King's  Bench  Division.     [1905]  2  K,  B.  123.) 

Collins,  M.  R.'^  This  is  an  appeal  from  the  judgment  of  the  Divi- 
sional Court  reversing  the  decision  of  the  county  court  judge.  The 
circumstances  are  shortly  these:  The  defendant  was  a  marriage  ad- 
vertising agent.  The  plaintiff  was  a  lady  who  was  desirous  of  get- 
ting married,  and  she  was'  attracted  by  an  advertisement  in  a  paper 
of  which  the  defendant  was  proprietor,  and  she  got  into  communica- 
tion with  him.  The  result  was  that  the  defendant  undertook  to  as- 
sist her  in  getting  married  by  means  of  introductions  to  gentlemen, 
and  she  agreed  to  pay  him  £250.  in  the  event  of  a  marriage  taking 
place  as  the  result  of  the  introductions.     She  also  agreed  to  pay  the 

36  See  also  Catts  v.  Phalen  (1844)  2  How.  376,  11  L.  Ed.  306;  In  re  E.  J. 
Arnold  &  Co.  (D.  C.  1904)  133  Fed.  789.  Both  of  these  cases  are  stated  and 
discussed  in  Stewart  v.  Wright,  at  page  292,  infra. 

37  The  statement  of  facts,  the  concurring  opinions  of  Mathew  and  Cozens- 
Hardy,  L.  JJ.,  and  portions  of  the  opinion  of  Collins,  M.  R.,  are  omitted. 


Sec.  2)  CONTRACT   ILLEGAL  283 

defendant  as  a  "special  client's  fee"  the  sum  of  i52.,  which  was  sent 
to  him  by  cheque,  the  receipt  of  which  the  defendant  acknowledged 
in  a  letter  in  which  he  said  that  £47.  was  to  be  returned  if  no  engage- 
ment or  marriage  took  place  within  nine  months.  The  defend- 
ant gave  her  various  introductions,  but  at  the  end  of  four  months 
the  lady  thought  better  of  it  and  demanded  back  the  money.  The 
county  court  judge  came  to  the  conclusion  that  the  plaintiff  was  entitled 
to  recover  the  money  on  the  ground  that  the  contract  was  a  marriage 
brokage  contract,  which  the  law  would  certainly  not  assist  towards  its 
accomplishment ;  that  it  was  a  contract  upon  which  the  law  looked  with 
dislike  and  would  assist  the  party  who  was  induced  to  enter  into  it 
to  undo  it. 

The  Divisional  Court  came  to  the  conclusion  that  the  particular 
arrangement  in  this  case  to  procure  introductions  with  a  view  to  mar- 
riage giving  the  lady  a  choice  among  the  persons  introduced  to  her, 
was  not  within  the  mischief  attributed  to  marriage  brokage  contracts. 
As  I  understand,  they  took  the  view  that  a  marriage  brokage  contract 
was  confined  to  the  case  of  a  contract  to  procure  marriage  with  one 
particular  person.  Going  back  to  the  principle  on  which  this  branch 
of  the  law  as  to  such  contracts  rests,  I  am  unable  to  find  any  ground 
for  that  distinction.  It  seems  to  me  that  the  principle  is  as  much  vio- 
lated in  the  class  of  cases  to  which  the  present  one  belongs  as  in  cases 
where  the  contract  relates  to  bringing  about  a  marriage  with  a  par- 
ticular individual.  *  *  *  Many  elements  have  no  doubt  entered 
into  the  judgments  in  different  cases,  but  at  the  root  of  the  question  of 
the  illegality  of  a  marriage  brokage  contract  is  the  introduction  of  the 
consideration  of  a  money  payment  into  that  which  should  be  free  from 
any  such  taint.  No  doubt,  apart  from  that  fundamental  objection, 
other  elements  may  intervene,  such  as  an  abuse  of  the  power  of  influ- 
encing possessed  by  a  parent  or  guardian  or  other  person  having  that 
power ;  but  those  are  illustrations  of  the  mischief,  and  not  the  ground 
on  which  the  principle  is  founded.     ♦     *     * 

In  my  opinion,  both  on  principle  and  authority,  the  transaction  in 
this  case  comes  within  the  rule  which  invalidates  marriage  brokage 
contracts. 

From  the  point  of  view  that  I  take  there  arises  a  question  which 
it  was  not  necessary  to  discuss  in  the  Court  below.  Assuming  that  the 
contract  was  illegal,  it  has  been  contended  that  there  has  been  such 
part  performance  of  the  contract  that  the  plaintiff  cannot  insist  upon 
having  it  undone.  The  principle  relied  on  is  that  a  person  allegans 
suam  turpitudinem  non  est  audiendus.  It  is  said  that  this  lady  comes 
to  the  Court  setting  up  the  fact  that  she  was  party  to  an  illegal  con- 
tract and  asking  for  relief,  and  that  she  should  not  be  allowed  to  do  so, 
for  though  it  is  true  that  in  modern  times  persons  have  been  allowed 
to  resile  from  illegal  contracts,  they  cannot  do  so  if  any  part  of  the 
illegal  purpose  has  been  accomplished.  Here  it  is  said  that  the  lady 
has  had  the  benefit  of  the  introductions  contracted   for,  and  of  the 


2S4      BENEFITS  UNDER  CONTRACT  PARTIALLY  PERFORMED    (Ch.  3 

trouble  and  expense  incurred  by  the  defendant,  and  that  it  is  to  late  for 
her  to  resile  from  the  contract.  The  answer  on  behalf  of  the  plaintiff 
is  put  on  two  grounds.  First,  it  is  put  upon  her  common  law  right  to 
recover  money  deposited  to  abide  the  result  of  an  event  that  has  never 
happened.  It  is  urged  that  she  deposited  money  with  the  defendant 
to  be  kept  by  him  only  on  the  happening  of  a  certain  event,  that  the 
object  for  which  she  deposited  the  money  was  illegal,  that  in  point  of 
law  there  was  no  contract,  and  that  it  was  competent  to  her  to  revoke 
it  at  any  time  before  the  event;  that  she  had  revoked  it,  and  was 
therefore  entitled  to  get  back  the  money  that  she  had  paid. 

For  authority  on  this  point  I  may  refer  to  the  judgment  of  Lord 
Justice  Stirling,  then  Mr.  Justice  Stirling,  in  Barclay  v.  Pearson, 
[1893]  2  Ch.  154.  The  learned  judge  after  considering  several  cases, 
referred  to  the  decision  of  Littledale,  J.,  in  Hastelow  v.  Jackson,  8  B. 
&  C.  221,  32  R.  R.  369,  in  these  terms:  "Hastelow  v.  Jackson,  8  B. 
&  C.  221,  32  R.  R.  369,  was  an  action  in  which  the  plaintiff  and  one 
Wilcoxon  deposited  money  in  the  hands  of  a  stakeholder  to  abide  the 
event  of  a  boxing  match  between  them,  and  after  the  battle  the  plain- 
tiff demanded  the  whole  sum  from  the  stakeholder,  and  threatened 
him  with  an  action  if  he  paid  it  over  to  Wilcoxon.  This  he  neverthe- 
less did  by  the  direction  of  the  umpire,  and  it  was  held  that  the  plain- 
tiff was  entitled  to  recover  from  him  his  own  stake  as  money  had  and 
received  to  his  use.  Mr.  Justice  Littledale  stated  the  law  very  clearly 
and  shortly  thus:  'If  two  parties  enter  into  an  illegal  contract,  and 
money  is  paid  upon  it  by  one  to  the  other,  that  may  be  recovered  back 
before  the  execution  of  the  contract,  but  not  afterwards.  In  the  case 
of  persons  entering  into  such  a  contract  and  paying  money  to  a  stake- 
holder, if  the  event  happens  and  the  money  is  paid  over  without  dispute, 
that  is  considered  as  a  complete  execution  of  the  contract,  and  the 
money  cannot  be  reclaimed;  but  if  the  event  has  not  happened,  the 
money  may  be  recovered.  With  respect  to  a  stakeholder  there  is  a 
third  case,  viz.,  where  the  event  has  happened,  but  before  the  money 
has  been  paid  over,  one  party  expresses  his  dissent  from  the  payment. 
Under  such  circumstances  he  may  recover  it;  and  perhaps  it  may 
then  be  said,  that  although  the  event  has  happened,  yet  the  contract  is 
not  completely  executed  until  the  money  has  been  paid  over,  and 
therefore  the  party  may  retract  at  any  time  before  that  has  been 
done.'  "  Other  authorities  have  been  referred  to,  notably  Tappenden 
V.  Randall,  2  Bos.  &  P.  467 ;   5  R.  R.  662. 

Upon  this  ground  the  common  law  position  of  the  plaintiff  is  made 
good.  In  terms  the  money  was  deposited  to  abide  the  event  of  a 
marriage  taking  place,  and  the  deposit  had  nothing  to  do  with  work 
and  labour  to  be  done.  The  contract  itself  was  simply  a  wagering 
contract,  and  the  defendant  was  to  hold  the  money  as  stakeholder 
till  the  event  happened.  If  the  event  took  place  the  money  was  to 
remain  with  the  defendant,  and  if  it  did  not  take  place  the  plaintiff, 
unless  she  is  prevented  from  claiming  relief,  can  recover  it  back.     In 


Sec.  2)  CONTRACT   ILLEGAL  285 

answer  to  the  suggestion  that  something  has  been  done  under  the 
contract,  the  plaintiff  may  say  that  it  was  no  part  of  the  contract 
that  the  defendant  should  make  the  introductions,  and  that  the  steps 
he  took  were  outside  the  contract  and  taken  in  his  own  interest  to 
improve  his  chance  of  winning  the  wager,  and  that  being  so  the  event 
contemplated  by  the  contract  had  not  happened.  That  seems  to  me 
to  be  a  good  point ;  but  I  do  not  propose  to  rest  my  judgment  on  that 
ground  only,  because  there  is  a  wider  ground.  I  refer  to  the  atti- 
tude that  the  Courts  of  Equity  have  taken  up  with  regard  to  the 
particular  mischief  arising  on  marriage  brokage  contracts.  There  was 
no  objection  at  common  law,  till  perhaps  some  hundred  years  ago,  to 
such  contracts ;  but  the  Courts  of  Equity  took  a  different  view,  and 
in  consequence  the  Courts  of  Common  Law  modified  their  view  of 
the  matter  and  shaped  their  course  accordingly.  Equity  did  not  take 
the  view  that  in  the  case  of  a  contract  of  this  particular  kind,  tainted 
with  illegality,  a  case  for  relief  could  only  be  considered  where  there 
had  been  a  total  failure  of  consideration. 

As  was  pointed  out  by  Lord  Hardwicke  in  Cole  v.  Gibson,  1  Ves. 
Sen.  503,  equity  reserves  to  itself  the  right  to  intervene  even  when 
something  has  been  done  in  part  performance  of  the  contract,  or  even 
when  the  marriage  has  taken  place.  That  the  Courts  took  a  special 
view  of  this  class  of  contract  appears  from  many  decisions  to  which 
reference  was  made  in  the  course  of  the  argument.  For  instance, 
in  Arundel  v.  Trevillian,  1  Rep.  Ch.  (3d  Ed.)  p.  47,  a  bond  was  set 
aside,  and  it  appears  from  the  report  that  the  marriage  had  taken 
place.  In  Smith  v.  Bruning,  2  Vem.  392,  a  bond  was  ordered  to  be 
given  up  and  a  gratuity  to  be  repaid.  In  Drury  v.  Hooke,  1  Vem.  412, 
a  bond  was  ordered  to  be  given  up  after  the  marriage  had  taken  place. 
The  principle  upon  which  the  Courts  of  Equity  proceeded  is  forcibly 
expressed  by  Sir  Joseph  Jekyll,  M.  R.,  in  Roberts  v.  Roberts,  3  P. 
Wms.  66,  a  decision  given  in  the  year  1730.  "It  is  most  true,"  said 
the  learned  judge,  "that  equity  does  abhor  all  underhand  agreements 
in  cases  of  marriage ;  and  perhaps,  this  may  be  the  only  instance  in 
equity,  where  a  person,  though  particeps  criminis,  shall  yet  be  allowed 
to  avoid  his  own  acts."  In  Tappenden  v.  Randall,  2  Bos.  &  P.  467, 
5  R.  R.  662,  Heath,  J.,  said :  "It  seems  to  me  that  the  distinction  adopt- 
ed by  Mr.  Justice  BuUer  between  contracts  executory  and  executed, 
if  taken  with  those  modifications  which  he  would  have  necessarily  ap- 
plied to  it,  is  a  sound  distinction.  Undoubtedly  there  may  be  cases 
where  the  contract  may  be  of  a  nature  too  grossly  immoral  for  the 
Court  to  enter  into  any  discussion  of  it;  as  where  one  man  has  paid 
money  by  way  of  hire  to  another  to  murder  a  third  person.^'     But 

88  In  Chapman  v.  Haley  (1904)  117  Ky.  1004,  80  S.  W.  190,  4  Ann.  Cas.  712, 
the  defendant  offered  to  sell  plaintiff  counterfeit  money  (as  the  court  found) 
and  plaintiff  gave  defendant  ij^.^OO,  the  latter  promising  to  return  in  trsventy 
minutes  with  .%3,000  of  the  counterfeit  money.  Defendant  did  not  return,  and 
plaintiff  did  not  see  or  hear  of  him  till  several  years  later.     Upon  discovering 


286      BENEFITS  UNDER  CONTRACT  PARTIALLY  PERFORMED    (CIl.  3 

where  nothing  of  that  kind  occurs,  I  think  there  ought  to  be  a  locus 
poenitentise,  and  that  a  party  should  not  be  compelled  against  his  will 
to  adhere  to  the  contract."  In  Reynell  v.  Sprye,  (1852)  1  D.  M.,  & 
G.  660,  at  p.  679,  Knight  Bruce,  L.  J.,  points  out  that  where  the  par- 
ties to  a  contract  against  public  policy,  or  illegal,  are  not  in  pari  delic- 
to, and  where  public  policy  is  considered  as  advanced  by  allowing 
either,  or  at  least  the  more  excusable  of  the  two,  to  sue  for  relief 
against  the  transaction,  relief  is  given  to  him.  I  cite  these  cases  tp 
shew  that  the  jurisdiction  exercised  by  the  Courts  of  Equity  was 
broader  than  that  of  the  Common  Law  Courts,  and  was  not  bound  by 
the  hard  and  fast  rule  that  if  anything  had  been  done  in  the  further- 
ance of  an  illegal  contract  the  Court  would  not  intervene. 

I  come  now  to  more  modern  cases.  In  Taylor  v.  Bowers,  1  Q.  B.  D. 
291,  at  p.  300,  Mellish,  L.  J.,  said:  "If  money  is  paid  or  goods  deliv- 
ered for  an  illegal  purpose,  the  person  who  had  so  paid  the  money  or 
delivered  the  goods  may  recover  them  back  before  the  illegal  purpose 
is  carried  out,  but  if  he  waits  till  the  illegal  purpose  is  carried  out  or 
if  he  seeks  to  enforce  the  illegal  transaction,  in  neither  case  can  he 
maintain  an  action ;  the  law  will  not  allow  that  to  be  done."  In  that 
case  it  was  clear  that  some  consideration  had  passed  because  in  pursu- 
ance of  the  agreement  the  goods  of  the  debtor  had  been  removed  and 
warehoused ;  but  that  was  not  allowed  to  interfere  with  the  decision 
of  the  Court,  for,  having  regard  to  the  main  object  of  the  agreement, 
no  part  of  that  had  been  accomplished.  How  far  is  that  qualified 
by  the  decision  in  Kearley  v.  Thomson,  24  Q.  B.  D.  742,^*  which  was 
also  a  decision  of  the  Court  of  Appeal  ?  Fry,  L.  J.,  took  exception  to 
the  statement  of  Mellish,  L.  J.,  in  the  former  case;  but  it  is  to  be 
observed  that  in  the  later  case  the  illegal  purpose,  which  was  to  de- 
feat creditors,  had  been  largely  accomplished,  for  the  contract  was 
that  the  defendants  should  not  appear  at  the  public  examination  of  the 
bankrupt,  and  that  contract  to  abstain  from  appearing  had  been  car- 
ried out.  If,  therefore,  the  dicta  of  the  Lord  Justice  controlled  us, 
they  do  not  apply  to  the  present  case,  in  which,  the  object  being  to 
bring  about  a  marriage,  it  could  not  be  performed  in  part.  It  seems 
to  me  that,  whether  this  case  is  regarded  from  the  point  of  view  of 
the  common  law  or  from  the  broader  point  of  view  of  the  Courts  of 
Equity,  we  are  entitled  to  grant  the  relief  asked  for,  and  are  not  de- 
barred from  doing  so  by  reason  that  the  defendant  has  taken  certain 
steps  and  incurred  some  expense  towards  carrying  out  his  part  of  the 
contract.  On  these  grounds  I  have  come  to  the  conclusion  that  this 
appeal  should  be  allowed.    Appeal  allowed.*" 

defendant,  the  plaintiff  sued  to  recover  the  $300  advanced.  The  opinion,  deny- 
ing a  recoverj',  discusses  "The  Hisrhwayman's  Case"  (9  Law  Quarterly  Review, 
197)  and  others  of  similar  character. 

so  The  facts  of  Kearley  v.  Thompson  are  stated  in  a  note,  page  278,  supra. 

*o  Accord:   Duval  v.  Wellman  (1S91)  124  N.  Y.  156,  26  N.  E.  343 ;   Wenninger 


Sec.  2)  CONTRACT   ILLEGAL  287 


STEWART  V.  WRIGHT. 

(Circuit  Court  of  Appeals  of  the  United  States,  Eighth  Circuit,  1906.     147  Fed. 

321,  77  C.  C.  A.  499.) 

In  Error  to  the  Circuit  Court  of  the  United  States  for  the  South- 
western Division  of  the  Western  District  of  Missouri. 

This  was  an  action  by  Wright  against  Joseph  C.  Stewart,  James 
P.  Stewart,  and  the  Exchange  Bank  of  Webb  City,  a  Missouri  cor- 
poration, to  recover  the  sum  of  $5,100,  alleged  to  have  been  obtained 
from  him  by  false  and  fraudulent  pretenses.  A  jury  was  waived,  and 
the  cause  was  tried  by  the  Circuit  Court,  which  made  a  general  find- 
ing, and  rendered  judgment  in  favor  of  the  plaintiff.  Wright  v.  Stew- 
art (C.  C.)  130  Fed.  905. 

Before  Sanborn,  Hook,  and  Adams,  Circuit  Judges. 

Hook,  Circuit  Judge. ^^  The  charge  in  the  petition  is  that  the  de- 
fendants, Stewart  and  the  bank,  acting  in  combination  and  concert 
with  a  number  of  swindlers  and  confidence  men,  obtained  from  the 
plaintiff,  Wright,  the  sum  of  $5,100,  and  that  it  was  accomplished  by 
means  of  a  pretended  foot  race,  the  result  of  which  was  secretly  ar- 
ranged in  advance,  and  by  inducing  the  plaintiff  through  various  false 
pretenses  to  place  his  money  temporarily  in  the  possession  of  one 
Boatright,  the  leader  of  the  swindlers,  who  pretended  to  be  acting  as 
a  stakeholder  in  the  betting,  and  who  promised  to  return  the  money 
so  soon  as  it  served  the  temporary  purpose  of  relieving  him  (Boat- 
right)  from  a  false  and  simulated  embarrassment  arising  out  of  the 
manipulation  of  the  stake  money  in  his  hands. 

For  some  years  there  existed  in  Webb  City,  Mo.,  an  organization 
styled  an  athletic  club,  the  ostensible  purpose  of  which  was  the  pro- 
motion of  athletic  sports  and  pastimes.  It  was  really  an  organized 
band  of  swindlers,  some  of  whom  masqueraded  as  wealthy  miners, 
and  so  notorious  did  they  become  that  they  were  commonly  known  in 
the  community  as  the  "Buckfoot  gang,"  and  their  continued  opera- 
tions became  an  intolerable  public  scandal.  The  only  branch  of  their 
operations  with  which  we  are  concerned  is  the  fake  foot  racing,  so 

V.  Mitchell  (1909)  1?>9  Mo.  App.  420,  122  S*.  W.  1130.     But  see  Chalfant  v.  Pay- 
ton  (1S83)  91  Ind.  202,  46  Am.  Rep.  586. 

In  Duval  v.  WeUman,  supra,  the  court  said:  "Where  a  party  carries  on  a 
hnsinpss  of  iironiotiiis:  niarriasre  as  the  defendant  appears  to  have  done,  it  is 
plain  to  be  seen  that  the  natural  tendency  of  such  a  business  is  immoral  and 
It  would  be  so  clearly  the  policy  of  the  law  to  suppress  it  and  public  interest 
would  be  so  greatly  promoted  by  its  suppression,  that  there  would  be  no 
hesitation  upon  the  part  of  the  courts  to  aid  the  party  who  had  patronized 
such  a  business  by  relieving  him  or  her  from  all  contracts  made,  and  grant 
restitution  of  any  money  paid  or  property  transferred.  In  that  way  only 
could  the  policy  of  the  law  be  enforced,  and  public  interests  promoted. 
*  *  *  Contracts  of  this  sort  are  considered  as  fraudulent  in  their  character, 
and  parties  who  pay  money  for  the  purpose  of  procuring  a  husband  or  wife 
will  be  regarded  as  under  a  si>ecies  of  imposition  or  undue  iullucnce." 
<i  Portions  of  the  opinions  of  Ilook  and  Sanborn.  JJ.,  are  omitted. 


288      BENEFITS  UNDER  CONTRACT  PARTIALLY  PERFORMED    (Ch.  3 

called.  Their  plan  was  to  entice  men  of  means  to  Webb  City,  and 
deprive  them  of  their  money  by  various  pretexts  and  devices  in  con- 
nection with  foot  races,  the  result  of  which  was  always  secretly  pre- 
arranged. Complaints  and  protests  from  the  victims  were  sometimes 
met  by  threats,  with  a  show  of  force.  Their  operations  covered  a 
wide  territory,  extending  from  Iowa  to  Texas,  and  tliey  had  a  regu- 
lar staff  of  decoys  in  the  field.  The  victims  were  selected  with  great 
care,  and  various  stories  were  told  to  induce  them  to  go  to  Webb 
City.  Their  vanity  and  sympathy  were  sometimes  played  upon,  and 
always  their  cupidity  and  desire  for  ill-gotten  gain.  Some  of  them 
were  falsely  assured  at  the  outset  that  they  were  not  expected  to  haz- 
ard their  own  money  upon  the  races,  but  were  told  that  it  would  be 
well  for  them  to  take  along  letters  of  credit  or  drafts,  to  impress  the 
others  at  Webb  City  with  their  responsibility  and  financial  standing. 
Sometimes  the  scheme  outlined  to  the  intended  victims  was  that  they 
assist  in  doing  an  act  of  justice  to  a  foot  racer  of  great  merit  who 
had  been  unfairly  treated  in  the  past,  and  who  intended  to  match  him- 
self with  one  backed  by  the  club,  whom  he  could  easily  defeat.  At 
other  times  the  pretended  purpose  was  to  enable  Boatright,  the  chief 
of  the  swindlers  and  the  president  of  the  club,  to  discipline  his  co- 
members,  who  were  getting  beyond  his  control,  and  this  was  to  be  ac- 
complished by  winning  their  money  on  a  foot  race,  the  result  of  which 
was  prearranged,  and  after  thus  demonstrating  that  they  were  at  his 
mercy  the  money  should  be  returned.  Sometimes  the  victim  was  in- 
duced to  bet  upon  what  he  was  led  to  believe  was  a  certain  and  as- 
sured result  of  a  foot  race.  In  other  instances  he  was  to  be  a  stake- 
holder, and  in  still  others,  as  in  the  case  at  bar,  he  was,  upon  a  prom- 
ise of  a  percentage  of  the  winnings,  to  handle  and  bet  the  money  se- 
cretly furnished  him  by  Boatright,  who  was  to  act  as  stakeholder,  and 
pretended  that  he  did  not  wish  it  known  that  he  was  doing  the  betting. 
But,  however  the  scheme  varied  in  its  details,  the  ultimate  purpose  al- 
ways in  view  was  to  beguile  the  victim  to  bring  money  or  to  arrange 
that  drafts  be  honored  by  his  home  bank;  to  get  actual  possession  of 
his  money  by  some  pretext  or  another  when  at  Webb  City,  and  in  do- 
ing so  to  place  him  in  such  a  position  that  to  complain  or  make  trouble 
for  them  he  would  have  to  admit  his  own  moral  obliquity.  They 
seemed  to  be  vaguely  aware  of  the  maxim  "in  pari  delicto,"  and  pre- 
pared to  use  it  as  a  shield  of  defense. 

To  induce  a  victim  to  bring  letters  of  credit  or  drafts,  or  to  arrange 
for  the  honoring  of  drafts  by  his  home  bank,  it  was  represented  that 
the  advent  of  a  stranger  upon  the  scene,  possessed,  apparently,  of 
considerable  means,  was  essential  to  the  consummation  of  the  scheme. 
By  slow,  cautious,  and  progressive  approach,  and  with  the  wiles  em- 
ployed by  confidence  men,  they  generally  succeeded  in  securing  the 
trust  of  the  victim,  and  he  was  induced  to  go  to  Webb  City  with  one 
or  more  of  the  decoys.    In  some  instances,  as  in  the  case  at  bar,  they 


Sec.  2)  CONTRACT   ILLEGAL  289 

were  met  outside  of  the  city  by  Boatright,  who  would  hand  the  victim 
several  thousand  dollars  in  currency  to  wager  upon  a  race,  the  result 
of  which  was  alleged  to  be  not  in  doubt.  One  of  the  numerous  con- 
spirators would  then  accompany  the  victim  to  the  defendant  bank  to 
see  that  the  money  was  safely  deposited  there,  and  it  would  be  sug- 
gested to  him  that  he  exhibit  to  the  bank  officials,  the  Stewarts,  proof 
of  his  own  financial  resources.  He  would  then  be  conducted  or  di- 
rected across  the  street  to  a  saloon,  where  the  subject  of  foot  racing 
would  be  casually  mentioned,  and  where  he  would  be  introduced  to 
Boatright  as  though  they  had  met  for  the  first  time.  The  members  of 
the  band  would  quickly  gather,  and  they  would  then  adjourn  to  a  room 
above  the  saloon,  represented  to  be  the  headquarters  of  the  club.  A 
foot  race  would  be  arranged,  the  betting  would  grow  fast  and  furious, 
and  large  sums  of  money  would  apparently  be  wagered.  The  victim 
would  bet  the  money  which  had  been  given  him  by  Boatright,  and  the 
latter  would  from  time  to  time  secretly  pass  him  sums  taken  from  the 
stakes  or  money  which  had  already  been  wagered,  and  the  victim  would 
in  turn  wager  them  upon  the  result  of  the  proposed  race.  Then  some 
one  with  a  quarrelsome  and  truculent  manner  would  claim  that  he  had 
made  a  bet  which  had  not  been  recorded,  and  would  demand  a  count 
of  the  money  in  the  hands  of  Boatright  in  order  to  prove  his  assertion. 
Boatright,  who  is  said  to  have  been  a  consummate  actor,  would  appear 
to  be  in  great  distress,  and  in  fear  of  the  vengeance  of  the  others 
should  they  discover  that  he  had  abstracted  money  from  the  stakes  and 
handed  it  to  the  stranger  to  be  wagered.  The  victim  would  then  be 
induced  by  Boatright's  pleading  to  make  drafts  upon  his  own  bank, 
which  would  be  cashed  at  the  defendant  bank,  and  the  money  would  be 
placed,  as  he  supposed  temporarily,  in  the  hands  of  Boatright,  to  re- 
lieve the  latter  from  his  embarrassment.  When  this  was  done  the 
disturbance  would  cease,  and,  if  there  was  no  chance  to  secure  more 
money  from  the  victim,  the  betting  would  be  closed,  the  money  would 
be  quickly  placed  in  a  satchel,  and  deposited  in  a  place  safe  from  the 
reach  of  the  victim — sometimes  in  the  defendant  bank.  The  crowd 
would  then  adjourn  to  the  place  where  the  pretended  foot  race  was 
to  be  run,  and  the  man  who  the  victim  thought  would  win  the  race 
would  fall  down  or  otherwise  fail  in  his  pretended  endeavor.  It  would 
then  be  claimed  that  the  victim  had  wagered  his  money  on  the  race, 
and  if  he  evinced  a  disposition  to  make  trouble  revolvers  would  be 
drawn,  and  he  would  be  cowed  into  submission.  This  was  but  one  of 
the  various  methods  employed  to  rob  the  victims  of  tlieir  money.  The 
details  of  the  scheme  were  frequently  changed  to  suit  the  exigencies  of 
the  particular  case,  but  the  result  was  always  the  same.  No  stranger 
ever  won  anything,  and  none  ever  escaped  without  being  defrauded. 
In  some  cases  their  money  was  given  up  under  circumstances  almost 
amounting  to  duress.  We  need  not  further  particularize  the  facts  in 
Wright's  case,  except  to  say  that,  while  protesting  that  he  was  bein^ 
Thurs.Quasi  Cont. — 19 


290  BENEFITS   UNDER   CONTRACT   PARTIALLY   PERFORMED  (Ch.  3 

robbed  and  demanding  the  return  of  his  money,  he  was  nevertheless 
induced  to  hold  one  end  of  the  string  at  the  pretended  foot  race.*^  *  *  * 

But  it  is  said  that  Wright  should  be  denied  relief  because  of  the 
maxim  "In  pari  delicto  potior  est  conditio  defendentis."  It  was  an 
essential  part  of  the  scheme  to  defraud  that  the  victim  should  be  led 
on  by  degrees  to  place  himself  in  such  a  position  that  he  would  be  pre- 
vented from  having  recourse  to  the  courts.  And  this  defense,  so  con- 
trived in  advance,  is  now  produced  for  recognition,  and  it  is  said  that, 
the  plaintiff  being 'equally  culpable  with  the  conspirators,  a  court  of 
justice  should  therefore  leave  him  where  it  finds  him.  It  must  be  ad- 
mitted that  when  Wright  left  his  home  for  Webb  City  he  thought  he 
was  going  to  participate  in  an  unlawful  scheme  to  defraud  others. 
But,  after  all,  it  amounted  to  nothing  more  than  a  mere  belief  on  his 
part.  That  he  was  betting  upon  a  foot  race  at  Webb  City  was  but  a 
figment  of  his  imagination.  In  reality  there  was  no  betting  and  no 
foot  race,  and  it  was  not  intended  that  there  should  be.  It  was  all  a 
pretense  and  a  sham.  He  was  merely  a  puppet,  who  was  acting  the 
will  of  the  conspirators  to  his  own  undoing.  The  real  design  behind 
the  scenes  was  one  in  which  Wright  did  not  participate  except  as  the 
victim.  If  he  was  particeps  criminis,  it  was  to  an  offense  against  him- 
self. Boatright  and  his  associates  sought  Wright  in  his  home,  awak- 
ened in  him  a  desire  for  wrongful  gain  that  might  otherwise  have  re- 
mained dormant,  inspired  in  his  mind  an  unfounded  idea  that  he  was 
going  to  secure  it,  and  then  by  fraud  and  false  pretenses  deprived  him 
of  his  money.  We  are  unable  to  agree  with  counsel  that  the  victim 
was  in  equal  wrong  with  those  who  despoiled  him  merely  because,  at 
their  instance,  and  as  a  result  of  their  wiles,  he  entertained  a  purpose 
which  it  was  never  intended  he  should  consummate.  To  hold  other- 
wise would  be  to  accord  too  much  weight  to  the  unsubstantial,  and  to 
enable  those  whose  active  occupation  was  swindling  to  successfully 
avail  themselves  of  the  false  position  in  which,  as  part  of  their  prede- 
termined scheme,  they  succeeded  in  placing  others  they  intended  to 
defraud.  Courts  of  justice  should  not  thus  reward  criminal  ingenuity. 
This  is  not  a  case  in  which,  two  persons  having  conspired  to  rob  an  in- 
nocent third,  one  of  the  two  robs  the  other.  The  pretended  miners, 
who  were  members  of  the  counterfeit  athletic  club,  and  against  whose 
wealth  Boatright  falsely  assumed  to  direct  his  designs,  were  in  fact 
his  criminal  accomplices.  They  were  confidence  men,  not  miners. 
They,  as  well  as  the  defendants,  played  their  part  in  the  scheme  to  de- 
fraud, the  whole  machinery  of  which  was  employed,  not  against  them- 
selves, but  against  their  victim. 

We  are  also  of  the  opinion  that,  viewing  the  conduct  of  Wright  in 
its  most  reprehensible  light,  nevertheless  the  interest  and  welfare  of 

42  The  learned  judge  found  that  the  defendants  Sfpwart  were  the  directors 
of  the  defendant  bank  and  the  owoiers  of  nearly  all  its  stock;  also  that  they 
were  janiiliar  with  the  practices  of  Boatright  and  his  associates  and  were 
in  the  habit  of  assisting  them  in  their  fraudulent  scheme. 


Sec.  2)  CONTRACT  ILLEGAL  291 

the  public  would  be  better  subserved  by  causing  the  loss  to  fall  upon 
ihose  who  aided  and  assisted  in  criminal  practices  followed  as  an  oc- 
cupation than  by  the  punishment  of  the  individual  victim.  It  would 
be  doubtful  wisdom  to  extend  encouragement  to  organizations  of  con- 
fidence men,  who  prey  upon  the  public,  by  allowing  them  the  use  of 
the  rule  "in  pari  delicto"  as  a  shield  of  defense,  when  a  part  of  the 
scheme  they  employ  is  to  place  those  they  seek  and  then  defraud  in 
the  position  they  rely  on. 

These  conclusions  are  abundantly  supported  by  authority.  The  rule 
which  declares  that  when  parties  are  in  equal  wrong  the  position  of 
the  defendant  is  the  better,  and  that  the  courts  will  not  allow  their 
machinery  to  be  used  for  the  relief  of  one  who  has  been  defrauded 
in  a  corrupt  or  illegal  transaction  in  which  he  participated,  is  based 
not  upon  statutory  provisions,  but  upon  general  principles  of  public 
policy.  It  is  therefore  not  for  the  sake  of  the  defendant  that  the  rule 
is  enforced,  but  to  promote  the  general  good.  And  when  the  objec- 
tion is  urged  by  the  defendant,  or  is  suggested  by  the  court  of  its  own 
motion,  two  questions  present  themselves  for  consideration :  Were  the 
parties  in  equal  wrong,  or  was  there  such  fraud,  deceit,  oppression,  or 
inequality  as  challenges  the  attention  of  a  court  of  justice?  If  they 
appear  to  be  in  equal  wrong,  will  nevertheless  a  wise  regard  for  the 
general  welfare  be  better  subserved  by  the  punishment  of  the  defend- 
ant than  by  denial  of  relief  to  the  complaining  party? 

In  1  Story,  Eq.  Jur.  §  300,  it  is  said:  "And  indeed  in  cases  where 
both  parties  are  in  delicto,  concurring  in  an  illegal  act,  it  does  not 
always  follow  that  they  stand  in  pari  delicto,  for  there  may  be,  and 
often  are,  very  different  degrees  in  their  guilt.  One  party  may  act  un- 
der circumstances  of  oppression,  hardship,  undue  influence,  or  great 
inequality  of  condition  or  age,  so  that  his  guilt  may  be  far  less  in  de- 
gree than  that  of  his  associate  in  the  offense.  And,  besides,  there  may 
be  on  the  part  of  the  court  itself  a  necessity  of  supporting  the  public 
interests  or  public  policy  in  many  cases,  however  reprehensible  tlie 
acts  of  the  parties  may  be." 

The  same  doctrine  is  recognized  by  Pomeroy:  "Even  when  the  con- 
tracting parties  are  in  pari  delicto,  the  courts  may  interfere  from  mo- 
tives of  public  policy.  'Whenever  public  policy  is  considered  as  ad- 
vanced by  allowing  either  party  to  sue  for  relief  against  the  trans- 
action, then  relief  is  given  to  him.' "  2  Pomeroy,  Eq.  Jur.  § 
941.     *     *     * 

The  precise  questions  now  before  us  were  presented  upon  similar 
facts  to  the  Supreme  Courts  of  Missouri  and  Arkansas.  Hobbs  v. 
Boatright  et  al.,  195  Mo.  693,  93  S.  W.  934,  5  L.  R.  A.  (N.  S.)  906, 
113  Am.  St.  Rep.  709,  and  Lockman  v.  Cobb,  77  Ark.  279,  91  S.  W. 
546.  In  the  Hobbs  Case  the  Missouri  court  affirmed  a  judgment 
against  the  Exchange  Bank  and  Stewart,  its  cashier,  upon  evidence 
which  is  said  by  that  court  to  be  substantially  the  same  as  in  the  case 
now  before  us.    Hobbs  was  one  of  the  numerous  victims  of  Boatright 


292  BENEFITS   UNDER   CONTRACT   PARTIALLY   PERFORMED  (Ch.  3 

and  his  co^conspirators.  Referring  to  the  general  rule,  that  court  said 
that  it  "should  not  be  applied  in  a  case  in  which  to  withhold  relief 
would  to  a  greater  extent  offend  public  morals."  And  it  put  this  ques- 
tion and  answered  it  against  the  defendants :  "Will  we  promote  good 
morals  to  say  to  this  gang  and  their  friends  and  abettors,  you  have  so 
debauched  and  degraded  your  victim  that  the  law  will  not  touch  him 
or  hear  his  complaint ;  therefore  you  may  go  free,  keep  what  you  took 
from  him,  and  look  out  for  another  victim  ?" 

In  the  Afkansas  case  Cobb  was  defrauded  by  some  of  Boatright's 
active  assistants,  who  seem  to  have  engaged  for  the  time  being  in 
business  on  their  own  account.  The  methods  employed  were  like  those 
in  the  case  at  bar,  and  the  same  defense  was  urged  against  recovery. 
The  Supreme  Court  of  that  state  said :  "In  what  wrong  or  crime  were 
the  plaintiff  and  defendants  in  pari  delicto?  If  any,  it  was  a  con- 
spiracy by  the  defendants  to  defraud  the  plaintiff  and  to  steal  his 
money ;  to  obtain  by  deceit  and  falsehood  the  money  of  plaintiff  by  in- 
ducing him  to  believe  that  a  foot  race  was  to  be  run,  and  that  they 
were  actually  wagering  their  money,  one  against  the  other,  upon  it; 
and  to  induce  him  to  believe  he  was  betting  upon  a  foot  race.  He  did 
not  participate  in  this  conspiracy,  and  could  not  possibly  have  done 
so.  *  *  *  By  fraud  and  deceit  they  caused  him  to  make  a  pre- 
tended wager,  and  robbed  him  of  his  money,  pretending  that  he  had 
lost  it.  He  might  have  intended  to  wager  if  he  had  the  opportunity, 
but  intention  without  any  act  to  carry  it  into  effect  does  not  constitute 
a  crime  or  a  wrong,  and  he  was  not  in  pari  delicto  with  the  defend- 
ants."    *     *     * 

In  re  Arnold  (D.  C.)  133  Fed.  789.  In  this  case  the  bankrupts,  by 
representing  that  they  were  engaged  in  conducting  a  racing  stable, 
betting  on  races,  etc.,  that  they  had  exceptional  facilities  for  making 
money  by  this  means,  and  that  their  profits  enabled  them  to  pay  large 
returns,  secured  from  the  public  deposits  of  large  sums  of  money  to 
be  used  in  their  business.  Among  the  depositors  was  the  claimant. 
His  claim  was  objected  to  on  the  ground  that  the  business  of  the  bank- 
rupts was  illegal,  and  he  knew  it.  It  was  found,  however,  that  many 
of  the  most  material  representations  which  induced  the  deposits  were 
entirely  false;  that  the  racing  was  but  an  incidental  feature  of  their 
scheme,  and  that  they  were  really  paying  the  pretended  dividends  out 
of  the  moneys  deposited,  and  not  out  of  profits  made.  It  was  con- 
tended that  the  bankrupts  and  the  claimant  were  engaged  in  a  gam- 
bling venture,  and  were  in  pari  delicto.  Judge  Adams,  now  of  this 
court,  held  that  this  view  was  altogether  too  superficial.  He  applied 
tlie  doctrine  announced  by  the  Supreme  Court  of  Vermont  in  Hinsdill 
V.  White,  supra  [34  Vt.  558],  and  allowed  the  claim. 

In  Catts  V.  Phalen,  2  How.  (U.  S.)  376,  11  L.  Ed.  306,  the  defend- 
ant was  employed  to  draw  numbers  from  a  lottery  wheel.  He  secretly 
employed  an  outsider  to  purchase  a  lottery  ticket  for  him,  and  when 
the  drawing  came  off  he  concealed  in  the  cuff  of  his  coat  a  false  ticket. 


Sec.  2)  CONTRACT   ILLEGAL  293 

with  numbers  corresponding  to  those  on  the  ticket  purchased,  and  then, 
sHpping  it  to  his  fingers,  he  pretended  to  have  drawn  it  from  the  wheel. 
He  received  a  prize  of  $12,500.  Upon  discover}^  of  the  fraud  an  ac- 
tion was  brought  to  recover  the  money.  The  case  was  considered  upon 
the  assumption  that  a  legislative  act  had  declared  the  lottery  business 
to  be  illegal,  and  that  defense  was  asserted.  The  Supreme  Court  held, 
however,  that  the  money  was  paid  to  and  received  by  the  defendant  on 
a  false  assertion  of  the  fact  that  he  had  a  ticket  which  was  entitled  to 
a  prize ;  that  the  contract  which  the  law  raised  between  the  parties  was 
not  founded  on  the  drawing  of  the  lottery,  but  on  the  obligation  to  re- 
fund the  money,  which  had  been  received  by  falsehood  and  fraud,  and 
by  the  assertion  of  a  drawing  which  never  took  place.  .  The  court  said 
that  to  state  is  to  decide  such  a  case,  and  it  was  held  that  the  plaintiffs 
could  recover.  Many  other  authorities  may  be  found  in  the  opinion 
of  the  learned  district  judge  before  whom  this  case  was  tried.  130 
Fed.  905. 

The  clear  distinction  between  the  relation  of  Wright,  upon  the  one 
hand,  and  that  of  Boatright  and  his  associates,  upon  the  other,  to  the 
fraudulent  transactions  by  which  the  former  was  deprived  of  his 
money  is  further  illustrated  by  the  aspect  in  which  such  transactions 
have  been  regarded  by  many  of  the  courts.  In  accordance  with  their 
decisions,  Boatright  and  his  associates  could  have  been  charged  with 
and  convicted  of  the  crime  of  larceny.  It  would  seem  anomalous  if 
Wright  were  held  to  be  particeps  criminis  to  a  larceny  of  his  own 
money,  and  equally  so  if  he  were  held  to  be  in  pari  delicto  with  those 
who  stole  it.  Conduct  similar  to  that  under  consideration  has  been 
held  to  constitute  larceny,  even  though  the  fraud  or  pretense  practiced 
on  the  victim,  and  by  which  he  was  despoiled  of  his  money,  assumed 
the  simulated  form  of  a  violation  of  the  law,  in  which  he  partici- 
pated."    *     *     * 

It  is  also  contended  that  a  recovery  by  Wright  is  precluded  by  the 
maxim  "ex  dolo  malo  non  oritur  actio."  This  contention  is  in  part 
answered  by  the  authorities  already  reviewed,  and  by  what  we  have 
said  concerning  the  character  of  the  transaction  and  Wright's  connec- 
tion with  it.  We  are  of  the  opinion  that  the  maxim  has  no  pertinency 
to  a  case  like  that  before  us.  Its  meaning  is  that  a  court  will  not 
lend  its  aid  to  one  who  founds  his  action  upon  an  immoral  or  illegal 
act,  and  the  test  of  its  applicability  is  whether  the  plaintiff  can  make 
out  his  case  otherwise  than  through  the  medium  and  by  the  aid  of  such 
an  act,  to  which  he  himself  was  a  party.  Must  he  have  the  aid  of  the 
illegal  transaction  in  order  to  recover?  Has  he  founded  his  action 
upon  it?    Is  he  seeking  to  recover  the  avails  or  the  results  thereof? 

Sir  George  Jessel  thus  expressed  the  doctrine  in  Sykes  v.  Beadon, 
L.  R.  11  Ch.  Div.  170,  197:   "I  think  that  the  principle  is  clear  tliat 

*8  Citations  of  authorities  omitted. 


294  BENEFITS  UNDER, CONTRACT  PARTIALLY   PERFORMED         (C'll.  3 

you  cannot  directly  enforce  an  illegal  contract,  and  you  cannot  ask 
the  court  to  assist  you  in  carrying  it  out.  You  cannot  enforce  it  in- 
directly ;  that  is,  by  claiming  damages  or  compensation  for  the  breach 
of  it,  or  contribution  from  the  persons  making  the  profits  realized 
from  it." 

It  seems  to  us  quite  obvious  that  this  doctrine  does  not  touch  tlie 
case  at  bar.  This  action  was  not  brought  to  enforce  a  corrupt  or  il- 
legal contract,  or  to  secure  any  of  the  fruits  thereof.  Wright  does 
not  so  found  the  action.  He  does  not  ask  the  court  to  recognize  the 
propriety  of  his  transaction,  or  to  award  him  any  portion  of  the  plun- 
der. He  proceeds,  not  in  affirmance  or  reliance,  but  wholly  by  way  of 
repudiation,  and  seeks  merely  a  restoration  of  that  which  was  illegally 
taken  from  him  by  fraud  and  false  pretense.  The  rule  which  controls 
cases  like  the  one  at  bar  is  the  rule  of  the  lottery  ticket  case  (Catts 
V.  Phalen,  supra).  It  was  also  expressed  by  the  Supreme  Court  in 
National  Bank  &  Loan  Co.  v.  Petrie,  189  U.  S.  423,  23  Sup.  Ct.  512, 
47  L.  Ed.  879,  where,  omitting  the  citations,  it  was  said :  "The  ques- 
tion then  is,  leaving  on  one  side  the  averment  just  quoted  from  the 
answer,  and  assuming  that  the  parties  were  attempting  a  transaction 
forbidden  by  the  law,  whether  the  nature  of  the  attempt  prevents  one 
of  them  from  withdrawing  from  the  bargain  on  the  ground  of  pre- 
liminary fraud.  If  the  withdrav/al  were  on  the  ground  of  repentance 
alone,  the  law  might,  or  might  not,  leave  the  parties  where  it  found 
them.  But  a  person  does  not  become  an  outlaw  and  lose  all  rights  by 
doing  an  illegal  act.  The  right  not  to  be  led  by  fraud  to  change  one's 
situation  is  anterior  to  and  independent  of  the  contract.  The  fraud  is 
a  tort.  Its  usual  consequence  is  that  as  between  the  parties  the  one 
who  is  defrauded  has  a  right,  if  possible,  to  be  restored  to  his  former 
position.  That  right  is  not  taken  away  because  the  consequence  of  its 
exercise  will  be  the  undoing  of  a  forbidden  deed.  That  is  a  conse- 
quence to  which  the  law  can  have  no  objection,  and  the  fraudulent 
party,  who  otherwise  might  have  been  allowed  to  disclaim  any  different 
obligation  from  that  with  which  the  other  had  been  content,  has  lost 
his  right  to  object  because  he  has  brought  about  the  other's  consent  by 
wrong." 

The  court  further  observed :  "Cases  where  the  action  is  on  the  ille- 
gal contract  do  not  apply."  The  transaction  referred  to  in  this  case  ap- 
pears to  have  been  completed,  and  not  one  in  which  one  of  the  parties 
halted  and  repented  during  its  progress.  When  attention  is  directed 
to  the  character  of  the  cases  in  the  Supreme  Court  which  are  relied 
upon  to  support  the  defense  ex  dolo  malo,  their  inapplicability  we  think 
becomes  apparent.  In  almost  every  instance  the  illegal  bargain  wa? 
the  vehicle  in  which  the  plaintiff  desired  the  court  to  move  him  to 
judgment.  He  founded  his  action  upon  it,  and  either  directly  or  indi- 
rectly sought  its  enforcement.  It  is  this  that  the  Supreme  Court  holds 
cannot  be  done.     *     *     * 

The  judgment  of  the  Circuit  Court  is  affirmed. 


Sec.  2)  CONTRACT   ILLEGAL  295 

Sanborn,  Circuit  Judge  (dissenting).  The  plaintiff  agreed  with 
Boatright  that  for  20  per  cent,  of  their  winnings  he  would  wager 
Boatright's  money  on  a  fake  foot  race,  which  Boatright  agreed  to 
make  certain  to  result  in  their  favor,  so  that  they  could  thereby  de- 
fraud tlie  miners  who  bet  against  them  out  of  their  money.  The  plain- 
tiff wagered  large  sums  of  money  which  he  knew  Boatright  fraudu- 
lently furnished  to  him  from  the  stakes  and  some  of  his  own  money 
in  the  performance  of  this  corrupt  agreement.  Boatright  broke  his 
contract,  and  fixed  the  race  against  him.  The  plaintiff  made  and  per- 
formed his  part  of  his  illegal  contract  to  defraud  others.  He  partici- 
pated in  the  betting  for  this  purpose.  His  intent  and  his  acts  were  no 
less  criminal  and  fatal  to  his  case  because  they  proved  abortive.  Rex 
V.  De  Berranger,  3  M.  &  S.  '72. 

The  result  of  the  opinion  of  the  majority  is  that  tlie  plaintiff  may 
recover  because  the  gambling  was  fraudulent,  because  while  the  plain- 
tiff was  performing  his  agreement  to  cheat  others  by  the  fraudulent 
device  of  inducing  them  to  bet  upon  the  fake  foot  race  they  were  en- 
gaged in  a  like  endeavor  to  defraud  him  by  the  same  device;  an  en- 
deavor in  which  they  succeeded  while  he  failed.  It  is  that  one  who 
is  defrauded  in  gaming  while  he  is  engaged  in  an  endeavor  to  defraud 
others  thereby  may  recover  the  losses  he  sustains.  The  argument  is 
that  the  plaintiff  was  induced  by  fraud  to  make  his  corrupt  agreement, 
and  to  perform  his  part  of  it  by  betting  upon  a  fraudulent  race,  and 
that  he  was  not  gaming  because  the  result  was  certain.  But  the  same 
argument  holds  good  in  every  case  of  foul  play,  because  in  every  such 
case  the  losing  gambler  is  induced  to  bet  upon  a  sure  thing  by  the 
fraudulent  representation  that  the  play  will  be  fair.  If  this  argument 
be  sound,  and  if  the  conclusion  in  this  case  illustrates  the  true  rule, 
every  gambler  may  recover  in  the  courts  the  losses  he  sustains  upon 
fixed  races,  marked  cards,  or  foul  plays  upon  the  ground  that  in  such 
cases  there  is-  no  uncertainty  in  the  result,  while  in  cases  in  which  the 
races  and  plays  are  fair  he  is  remediless ;  and  henceforth  the  courts 
must,  as  Judge  Sherwood  said  in  Kitchen  v.  Greenabaum,  61  Mo.  115, 
"sit  as  the  arbiters  of  the  gaming  table  and  the  umpires  of  the  prize 
ring,"  for  they  must  hear  the  evidence  upon  and  determine  the  issue 
in  every  losing  gambler's  case,  whether  the  race  or  play  was  foul  or 
fair,  and  give  judgment  for  or  against  him  accordingly.  A  rule  and 
practice  of  this  nature  runs  counter  to  my  views  of  the  law,  to  those 
•of  more  eminent  judges  who  have  preceded  me,  and  to  the  established 
rule  that  no  cause  of  action  lies  for  fraud  which  induces,  or  damage 
which  results  from,  a  contract  or  transaction  which  involves  the  moral 
turpitude  of  the  plaintiff",  or  his  violation  of  a  general  law  of  public 
policy. 

In  Babcock  v.  Thompson,  20  Mass.  (3  Pick.)  446,  449,  15  Am.  Dec. 
235,  this  very  question  was  considered  and  determined  by  the  Supreme 
Court  of  Massachusetts.  The  plaintiff  brought  an  action  to  recover 
from  the  defendant  money  lost  in  gaming  by  foul  play.     The  court 


296  BENEFITS   UNDER   CONTRACT   PARTIALLY   PERFORMED  (Cll.  3 

said,  by  the  mouth  of  Chief  Justice  Parker:  "Here  is  a  case  of  gaming 
accompanied  with  cheating.  Clearly,  if  the  gaming  had  been  fair,  the 
law  would  give  no  remedy.  The  only  question  then  is,  whether  the 
fraud  will  alter  the  case.  We  think  it  will  not.  If  a  man  thus  volun- 
tarily puts  himself  in  a  condition  to  be  cheated,  through  his  illegal  act 
he  cheats  the  government,  and  the  other  person  cheats  him,  and  they 
must  be  left  to  settle  the  affair  between  themselves," 

In  Abbe  v.  Marr,  14  Cal.  210,  212,  the  exact  case  before  us  was  pre- 
sented to  the  Supreme  Court  of  California,  which  was  then  composed 
of  Chief  Justice  Field,  afterwards  Mr.  Justice  Field  of  the  Supreme 
Court,  and  Judges  Baldwin  and  Cope.  The  members  of  a  gang  of 
swindlers,  by  false  representations  and  promises  that  they  had  arrang- 
ed to  fix  a  horse  race  so  that  the  plaintiffs'  horse  would  surely  win, 
induced  them  to  bet  their  horses,  cows,  wood,  and  money  on  this  race, 
and  then  they  so  fixed  the  race  that  the  plaintiffs  lost.  They  brought 
an  action  directly  against  the  members  of  the  gang  to  recover  back 
their  property.  The  court  said:  "No  court  of  justice  can  listen  to 
such  a  case.  When  the  plaintiff  asserts  his  own  turpitude  in  this  way 
he  sends  his  case  out  of  court.  If  in  attempting,  by  way  of  reprisal 
or  otherwise,  to  swindle  another  he  becomes  the  victim  of  his  own  arts, 
it  may  become  a  question  in  morals  or  in  honor  which  party  is  more 
culpable.  Courts  of  law  entertain  no  discussion  on  the  subject,  but 
terminate  the  controversy  by  shutting  their  doors  in  the  face  of  the 
intruder."     *     *     * 

In  Haynes  v.  Rudd,  102  N.  Y.  372,  376,  7  N.  E.  287,  55  Am.  Rep 
815,  the  maker  of  a  note  brought  an  action  against  the  payee  to  re- 
cover from  him  the  amount  which  the  maker  had  been  obliged  to  pay 
to  a  bona  fide  holder  of  the  note,  which  the  defendant  had  induced 
him  by  threats  and  the  inspiration  of  fear  to  make  to  compound  a  fel- 
ony. The  court  refused  to  permit  a  recovery  and  said :  "While  fraud, 
duress,  and  undue  influence  employed  in  procuring  a  contract  for  the 
payment  of  money  may  vitiate  and  destroy  the  obligation  created,  and 
render  it  of  no  effect,  and  the  party  who  has  been  compelled  to  pay 
money  on  account  thereof  may  maintain  an  action  to  recover  the 
same,  such  a  right  does  not  exist  and  cannot  be  enforced  where  the 
consideration  of  the  contract  thus  made  arises  entirely  upon,  or  is  in 
any  way  affected  by,  the  compounding  of  a  felony." 

Nor  does  such  a  right  exist  when  the  object  of  the  fraud  is  to  in- 
duce the  victim  to  make  and  perform  a  contract  to  defraud  others, 
or  to  conduct  an  illegal  transaction  in  gaming,  because  he  can  do  nei- 
ther without  himself  violating  the  moral  and  the  civil  law,  and  shut- 
ting the  doors  of  the  courts  against  him.  This  conclusion  is  further 
sustained  by  the  following  rules  of  law  and  decisions  of  the  courts. 

1.  Ex  dolo  malo  non  oritur  actio.  It  is  the  settled  public  policy  of 
the  United  States  that  its  courts  shall  sustain  no  action,  whether  in 
tort  or  on  contract,  which  arises  out  of  the  moral  turpitude  of  the 
plaintiff,  or  from  his  violation  of  a  general  law  of  public  policy,  be- 


Sec.  2)  CONTRACT   ILLEGAL  297 

cause  the  maintenance  of  such  actions  promotes  violations  of  the  moral 
law  and  of  the  civil  law  by  inspiring  the  belief  that  one  may  safely 
violate  both,  since  if  he  loses  the  courts  will  make  him  whole.  This 
rule  is  not  conditioned  nor  limited  by  the  maxim,  "In  pari  delicto  po- 
tior est  conditio  defendentis,"  nor  by  any  requirement  that  the  guilt 
of  the  plaintiff  must  be  equal  to  that  of  the  defendant.  Such  a  limita- 
tion would  destroy  the  rule,  because  the  cases  are  rare,  perhaps  none 
ever  arises,  in  which  the  intelligence,  knowledge,  and  situations  of  the 
parties  are  such  that  their  guilt  is  equal. *^     *     *     * 

2.  The  maintenance  of  actions  to  recover  moneys  or  property  lost 
or  damages  sustained  through  transactions  or  contracts  wherein  the 
plaintiffs  are  guilty  of  moral  turpitude  or  of  the  violation  of  a  general 
law  of  public  policy  is  as  imperatively  prohibited  by  the  foregoing  rule 
as  the  maintenance  of  actions  to  enforce  contracts  of  that  na- 
ture.**    *     *     * 

3.  No  action  lies  for  fraudulently  inducing  one  to  engage  knowing- 
ly, or  for  damages  resulting  while  one  is  knowingly  engaged,  in  a  con- 
tract or  transaction  which  involves  his  own  moral  turpitude  and  his 
violation  of  general  laws  of  public  policy,  because  his  own  wrong  and 
his  violation  of  law  repel  him  from  the  courts.**     *     *     * 

4.  The  maxim,  "In  pari  delicto  potior  est  conditio  defendentis"  is 
but  a  corollary  to  the  general  rule  "Ex  dolo  malo  non  oritur  actio,"  and 
it  neither  limits  nor  controls  it.  But  if  the  act  or  contract  from  which 
one's  cause  of  action  springs  be  in  itself  immoral,  or  a  violation  of  the 
general  laws  of  public  policy,  he  is  in  pari  delicto,  within  the  proper 
interpretation  of  this  maxim,  although  his  guilt  may  be  incomparably . 
less  than  that  of  the  defendant.  Thomas  v.  Richmond,  12  Wall.  349, 
355,  20  L.  Ed.  453 ;  Smith  v.  Bromley,  2  Doug.  696,  note ;  Harriman  v. 
Northern  Securities  Co.,  197  U.  S.  244,  295,  25  Sup.  Ct.  493,  49  L. 
Ed.  739,  and  authorities  cited  under  rule  1.  The  test  which  determines 
whether  or  not  a  plaintiff  is  in  pari  delicto,  within  the  true  meaning 
of  this  maxim,  is  not  whether  his  guilt  is  equal  to  that  of  the  defendant, 
but  whether  or  not  the  whole  transaction  upon  which  his  case  is  found- 
ed can  be  portrayed  to  the  court  without  disclosing  his  moral  turpi- 
tude or  his  violation  of  a  general  law  of  public  policy.  Taylor  v. 
Chester,  L.  R.  4  Q.  B.  314,  315;  Simpson  v.  Bloss,  7  Taunt.  256; 
Gregg  V.  Wyman,  58  Mass.  (4  Cush.)  322,  326,  and  authorities  there 
cited.** 

*8  Citations  of  authorities  omitted. 

4  4  "The  true  test  for  deterniining  whether  or  not  the  plaintiff  and  the  de- 
fendant were  in  pari  delicto,  is  by  considerinf?  whether  the  plaintiff  could  make 
out  his  ease  otherwise  than  through  the  medium  and  by  the  aid  of  the  illegal 
transaction  to  which  he  was  himself  a  party.  Simpson  v.  Bloss,  7  Taunt.  246; 
Fivaz  V.  Nicholls,  2  C.  B.  501."     Taylor  v.  Chester  (1SG9)  L.  li.  4  Q.  B.  3Q9. 

"It  is  argued  on  the  plaintiff's  behalf  that  the  claim  which  he  makes  is  for 
money  had  and  received,  traced  distinctly  to  Tliaxter's  hands,  and  held  by  a 
contract  tainted  with  no  illegality ;  that  the  defendant,  in  order  to  resist 
the  claim,  is  obliged  to  set  up  an  illegal  agreement,  and  rely  upon  it,  and  that 
*itAs  necessity  is  the  test  as  to  the  equality  of  the  delict     However  ingenious 


298  BENEFITS   UNDER  CONTRACT   PARTIALLY   PERFORMED  (Ch.  3 

The  rule  of  law  which  governs  this  case  is  one  of  public  policy.  All 
agree  that  the  highest  and  broadest  public  policy  forbids  relief  to  the 
plaintiff,  or  the  punishment  of  the  defendants  by  the  maintenance  of  a 
baseless  action,  in  violation  of  any  settled  public  policy  of  the  nation 
evidenced  by  the  uniform  decisions  of  its  Supreme  Court.  The  opin- 
ion of  the  majority,  however,  is  that  it  is  the  public  policy  of  this  na- 
tion to  sustain  actions  arising  out  of  contracts  and  transactions  where- 
in the  plaintiffs  have  been  guilty  of  moral  turpitude  and  of  violation  of 
general  laws  of  public  policy,  such  as  those  against  gaming,  unless  the 
guilt  of  the  plaintiffs  is  equal  to  that  of  the  defendants,  and  even  then 
whenever  the  judges  who  happen  to  try  any  particular  case  are  of  the 
opinion  that  the  general  welfare  will  be  better  subserved  by  the  pun- 
ishment of  the  defendant  tlian  by  the  denial  of  relief  to  the  complain- 
ing party. 

Public  policy  is  not  to  be  determined  by  the  views  which  particular 
judges  may  entertain  of  the  interests  of  the  people,  nor  by  general  con- 
siderations tending  to  show  what  policy  would  probably  be  wise  or 
unwise,  because  such  a  standard  of  determination  might  be  uncon- 
sciously varied  by  the  personal  views  of  the  judges  who  happen  to  con- 
stitute the  court  in  each  particular  case.  The  public  policy  of  the  na- 
tion may  be  determined  only  by  its  Constitution,  laws,  and  judicial 
decisions.  Vidal  v.  Girard's  Exr's,  2  How.  127,  197,  11  L.  Ed.  205; 
Swann  v.  Swann  (C.  C.)  21  Fed.  299,  301 ;  U.  S.  v.  Freight  Ass'n,  166 
U.  S.  340,  17  Sup.  Ct.  540,  41  L.  Ed.  1007;  Hartford  Fire  Ins.  Co. 
v.  Chicago,  Milwaukee  &  St.  Paul  Ry.  Co.,  70  Fed.  201,  202.  17  C.  C. 
A.  62,  63,  30  L.  R.  A.  193 ;  Daniels  v.  Benedict,  97  Fed.  367,  372,  38 
C.  C.  A.  592,  597. 

-  Nor  is  the  question  here  one  of  the  public  policy  of  the  state  of 
Missouri.  This  is  an  action  between  citizens  of  different  states.  It' 
involves  a  question  of  general  law,  the  public  policy  of  the  nation  re- 
garding the  maintenance  in  its  courts  of  actions  for  damages  resulting 
from  transactions  wherein  the  plaintiffs  are  guilty  of  moral  turpitude, 
as  was  the  plaintiff  in  this  case  in  making  and  performing  his  part  of 
the  agreement  to  defraud  his  associates  by  betting  upon  a  fraudulent 
foot  race.  Hartford  Fire  Ins.  Co.  v.  Chicago,  Milwaukee  &  St.  Paul 
Ry.  Co.,  70  Fed.  201,  202,  17  C.  C.  A.  62,  63,  30  L.  R.  A.  193.    More- 

this  suggestion  may  be.  It  can  hardly  prevent  the  court  from  taking  the  whole 
transaction  together,  and  considering  what  it  is  in  substance  and  effect.  Tlie 
application  of  the  maxim,  in  pari  delicto,  etc.,  does  not  depend  upon  any 
technical  rule  as  to  which  party  is  the  first  to  urge  it  upon  the  court  in  the 
pleadings.  In  pi-actice,  it  is  usually  insisted  upon  by  the  defendant  in  answer 
to  a  prima  facie  case."  Sampson  v.  Shaw  (1S69)  101  Mass.  145,  151,  3  Am. 
Rep.  327. 

"It  is  true  that  a  plaintiff  can  never  recover  where  he  has  to  trace  his  title 
through  an  illegal  act.  But  it  does  not  follow  that  he  can  recover  where  he 
technically  avoids  proof  of  the  Illegal  act.  The  defendant  can  show  that  the 
plaintiff's  evidence  is  not  true.  If  the  whole  evidence,  properly  admissible 
on  both  sides,  discloses  the  fact  that  the  plaintiff's  claim  is  founded  in  an 
illegal  transaction,  he  cannot  recover."     I'laisted  v.  Palmer  (1S74)  63  Me.  576. 


Sec.  2)  CONTRACT   ILLEGAL  299 

over,  the  state  of  Missouri  has  no  settled  public  policy  upon  this  ques- 
tion.    *     *     * 

In  Holman  v.  Johnson,  1  Cowp.  343,  Lord  Mansfield  declared  the 
public  policy  which  has  ever  prevailed  in  England  in  memorable  words, 
which  have  been  adopted  by  repeated  decisions  of  the  Supreme  Court 
of  the  United  States  in  cases  which  have  involved  this  question.  He 
said:  "The  objection  that  a  contract  is  immoral  or  illegal  as  between 
plaintifif  and  defendant  sounds  at  all  times  very  ill  in  the  mouth  of  the 
defendant.  It  is  not  for  his  sake,  however,  that  the  objection  is  ever 
allowed ;  but  it  is  founded  in  general  principles  of  policy,  which  the  de- 
fendant has  the  advantage  of,  contrary  to  the  real  justice,  as  between 
him  and  the  plaintiff,  by  accident,  if  I  may  so  say.  The  principle  of 
public  policy  is  this :  'Ex  dolo  malo  non  oritur  actio.'  No  court  will 
lend  its  aid  to  a  man  who  founds  his  cause  of  action  upon  an  immoral 
or  an  illegal  act.  If,  from  the  plaintiff's  own  stating  or  otherwise,  the 
cause  of  action  appears  to  arise  ex  turpi  causa,  or  the  transgression  of 
a. positive  law  of  this  country,  there  the  court  says  he  has  no  right  to 
be  assisted.  It  is  upon  that  ground  the  court  goes ;  not  for  the  sake 
of  the  defendant,  but  because  they  will  not  lend  their  aid  to  such  a  plain- 
tiff. So  if  the  plaintiff  and  defendant  were  to  change  sides,  and  the 
defendant  was  to  bring  his  action  against  the  plaintiff,  the  latter  would 
then  have  the  advantage  of  it:  for  where  both  are  equally  in  fault,  po- 
tior est  conditio  defendentis." 

It  will  be  noticed  that  the  basis  of  this  rule  is  not  the  equality  of  the 
guilt  of  the  parties  to  the  action.  The  remark  upon  that  subject  pre- 
sents the  maxim  "In  pari  delicto  potior  est  conditio  defendentis"  as  a 
mere  corollary  to  the  fundamental  rule.  By  the  terms  of  the  statement 
of  Lord  Mansfield  it  neither  conditions  nor  controls  that  rule.  The 
rule  is  that  the  courts  will  not  aid  a  plaintiff  to  maintain  an  action 
which  arises  out  of  his  moral  turpitude  and  the  violation  of  a  general 
law  of  public  policy  if  his  act  or  contract  is  stained  with  wrong,  al- 
though his  guilt  may  be  less  than  that  of  the  defendant,  and  the  rea- 
son for  it  is  that  the  maintenance  of  such  actions  necessarily  promotes 
violations  of  both  the  moral  and  the  civil  law.  It  leads  men  to  lay  the 
flattering  unction  to  their  souls  that  they  may  safely  violate  the  laws 
of  both  God  and  man  because  if  they  lose  thereby  the  courts  will  fully 
indemnify  them.  This  rule  of  public  policy  has  been  adopted  and 
steadily  maintained  by  the  uniform  decisions  of  the  Supreme 
Court.  *^     *     *     * 

The  Supreme  Court,  so  far  as  the  decisions  cited  or  discovered  in- 
dicate, has  never  departed  from  this  rule.  There  are  two  cases  in 
which  the  plaintiffs  had  been  guilty  of  no  moral  turpitude  and  had  vio- 
lated no  general  law  of  public  policy  wherein  they  were  permitted  to 
recover  the  value  of  tlie  property  they  had  delivered  to  corporations 

46  The  learned  judge  here  discussed  Coppell  v.  Hall  (ISCS)  7  Wall.  542, 
19  L.  Ed.  244,  ttud  Thomas  v.  Itichmond  (1870)  12  Wall.  340,  20  L.  Ed.  453. 


300      BENEFITS  UNDER  CONTRACT  PARTIALLY  PERFORMED    (Cll.  3 

under  contracts  that  were  simply  beyond  the  powers  of  those  corpora- 
tions. These  cases  are  Spring  Co.  v.  Knowlton,  103  U.  S.  49,  26  L.  Ed. 
347,  where  the  plaintiff  recovered  back  an  installment  of  20  per  cent. 
of  the  par  value  of  stock  which  he  had  agreed  to  take,  but  which  the 
corporation  had  no  lawful  authority  to  issue  and  did  not  issue,  and 
Pullman's  Car  Co.  v.  Transportation  Co.,  171  U.  S.  138,  151,  18  Sup. 
Ct.  808,  43  L.  Ed.  108,  in  which  the  transportation  company  was  per- 
mitted to  recover  the  value  of  property  which  it  had  delivered  under 
a  contract  beyond  the  powers  of  the  corporation.  But  in  each  of  these 
cases  the  Supreme  Court  was  careful  to  reiterate  the  fundamental  rule, 
and  to  declare  that  it  would  not  be  disregarded  and  its  full  effect  would 
not  be  minimized.  In  the  former  case  it  said :  "It  is  to  be  observed 
that  the  making  of  the  illegal  contract  [the  contract  of  subscription] 
was  malum  prohibitum  and  not  malum  in  se.  There  is  no  moral  turpi- 
tude in  such  a  contract,  nor  is  it  of  itself  fraudulent,  however  much 
it  may  afford  facilities  for  fraud."  <«     *     *     * 

The  case  of  Catts  v.  Phalen,  2  How.  376,  11  L.  Ed.  306,  cited  by 
the  majority,  rests  upon  the  defendant's  false  representation  that  he 
had  drawn  a  prize  ticket  when  he  had  not,  and  upon  the  fact  that  the 
plaintiffs  had  no  need  to  disclose  their  acts,  if  any,  in  violation  of  the 
statute  against  lotteries  in  order  to  sustain  their  action.  They  aban- 
doned all  the  other  counts  in  their  complaint,  and  recovered  upon  the 
count  for  money  had  and  received  upon  the  sole  ground  that  they  had 
been  induced  to  pay  out  their  money  long  after  the  lottery  had  been 
drawn  by  the  false  representation  of  the  defendant  that  he  had  drawn 
out  the  prize  ticket.  This  case  was  decided  in  1844,  and  if  it  has  any 
further  or  different  significance  it  has  been  overruled  long  since  by 
the  decisions  of  the  Supreme  Court  which  are  here  cited.     *     *     * 

Further,  the  maxim  of  equity  analogous  to  the  principle  which  gov- 
erns this  case  is  not  "In  pari  delicto  potior  est  conditio  defendentis," 
but  "He  who  comes  into  a  court  of  equity  must  come  with  clean  hands," 
and  "He  who  has  done  iniquity  cannot  have  equity."  A  court  of  equity 
repels  from  its  precincts  remediless  the  complainant  who  has  been 
guilty  of  bad  faith,  fraud,  or  any  unconscionable  act  in  the  transaction 
which  forms  the  basis  of  his  suit.  1  Pomeroy,  Eq.  Jur.  pars.  397,  398, 
400;  Medicine  Co.  v.  Wood,  108  U.  S.  218,  227,  2  Sup.  Ct.  436,  27  L. 
Ed.  706;  Marble  Co.  v.  Ripley,  10  Wall.  339,  Z57,  19  L.  Ed.  955; 
Michigan  Pipe  Co.  v.  Fremont  Ditch,  etc.,  Co.,  49  C.  C.  A.  324,  327, 
111  Fed.  284,  287,  "If  a  contract  has  been  entered  into  through  fraud, 
or  to  accomplish  any  fraudulent  purpose,  a  court  of  equity  will  not,  at 
the  suit  of  one  of  the  fraudulent  parties — a  particeps  doli — while  the 
agreement  is  still  executory,  either  compel  its  execution  or  decree  its 
cancellation,  nor  after  it  has  been  executed,  set  it  aside,  and  thus  re- 


<«  On  appeal  from  a  previous  trial  of  this  case  the  New  York  Commission 
of  Appeals  denied  a  recovery,  treating  the  contract  as  malum  in  se.  Knowlton 
V.  Congress  &  Empire  Spring  Co.  (1S74)  57  N.  Y.  518. 


Sec.  2)  CONTRACT   ILLEGAL  301 

store  the  plaintiff  to  the  property  or  other  interests  which  he  had  fraud- 
ulently transferred."     1  Pomeroy,  Eq.  Jur.  par.  401. 

If  the  decisions  of  the  Supreme  Court  have  not  been  misappre- 
hended, they  evidence  a  uniform  and  established  public  policy  of  the 
nation  to  refuse  to  maintain  in  its  courts  any  action  which  is  founded 
in  a  plaintiff's  immoral  contract  or  act,  or  in  his  contract  or  act  viola- 
tive of  a  general  law  of  public  policy.  This  rule  of  public  policy  is  not 
conditioned  or  limited  by  any  inquiry  into  the  equality  of  the  guilt  of 
the  plaintiff  and  the  defendant.  It  applies  wherever  the  plaintiff  is 
particeps  criminis,  whatever  the  degree  of  his  guilt.  It  forbids  the 
maintenance  of  actions  to  repudiate  or  rescind  corrupt  contracts  and 
transactions  and  to  recover  the  money  lost  in  their  performance  as 
imperatively  as  actions  to  enforce  them.  The  plaintiff's  cause  of  ac- 
tion is  founded  in  his  own  moral  turpitude  in  making  and  performing, 
his  part  of  the  agreement  to  defraud  his  associate  gamblers,  and  in  a 
violation  of  the  general  laws  of  public  policy  against  gambling,  and 
it  ought  not  to  be  maintained  in  a  court  of  the  United  States.  Its 
maintenance  is  controlled  and  forbidden  by  the  principle,  "Ex  dole 
malo  non  oritur  actio."  It  is  not  governed  or  permitted  by  the  maxim, 
"In  pari  delicto  est  conditio  defendentis." 

If,  however,  the  view  heretofore  presented  were  mistaken  and  if 
the  maxim  "In  pari  delicto"  could  be  lawfully  applied  to  the  decision 
of  this  case,  it  would  still  seem  to  me  that  there  was  no  right  of  recov- 
ery in  the  plaintiff:  (1)  Because  his  contract  and  act  to  defraud  the 
miners  were  immoral,  and  his  betting  was  violative  of  a  general  law 
of  public  policy,  and  these  facts  place  him  in  pari  delicto,  within  the 
legal  meaning  of  this  maxim.  Thomas  v.  Richmond,  12  Wall.  349, 
355,  20  L.  Ed.  453.  (2)  Because  evidence  of  his  acts  of  moral  wrong 
and  violation  of  a  general  law  of  public  policy  is  essential  to  a  proof 
of  his  cause  of  action,  and  this  fact  places  him  in  pari  delicto.  Taylor 
V.  Chester,  L.  R.  4  Q.  B.  314,  315;  Gregg  v.  Wyman,  58  Mass.  (4 
Cush.)  322,  326,  and  cases  there  cited.  (3)  Because  if  the  court  is  to 
sit  to  determine  whether  the  plaintiff  or  the  defendants  were  the  more 
guilty,  the  evidence  appears  to  me  to  fix  the  heavier  burden  upon  the 
former.  The  question  is  not  whether  the  guilt  of  the  members  of  the 
Buckf oot  gang  was  equal  to  that  of  the  plaintiff,  but  whether  the  guilt 
of  the  plaintiff  was  equal  to  that  of  these  defendants.     *     *     * 

The  principles,  rules,  and  authorities  to  which  reference  has  now 
been  made  have  forced  my  mind  to  the  conclusion  that  the  plaintiff  is 
entitled  to  no  relief  at  the  hands  of  the  courts  of  the  United  States  in 
this  case  because  he  was  guilty  of  the  moral  turpitude  of  making  and 
performing  his  part  of  his  contract  with  Boatright  to  defraud  the 
miners  by  a  fixed  foot  race,  and  because  he  was  guilty  by  his  betting 
of  violating  a  general  law  of  public  policy,  and  this  contract  and  act 
constitute  an  inseparable  part  of  his  cause  of  action,  because  it  was 
in  the  performance  of  them  that  he  lost  his  money. 

There  is  anether  reason  why  the  judgment  below  should  be  reversed. 


302  BENEFITS   UNDER   CONTRACT   PARTIALLY   PERFORMED  (Cll.  3 

This  is  not  an  action  for  money  had  and  received.  The  defendants 
have  none  of  the  money  or  property  of  the  plaintiff.  It  is  an  action 
for  damages  for  v^^rongful  acts  of  the  defendants.  The  only  acts  they 
performed  in  this  case  which  could  in  any  way  have  caused  the  plain- 
tiff to  lose  his  money  were  the  statement  of  the  cashier  that  Boatright 
was  all  right  and  the  cashing  of  the  drafts  of  the  plaintiff  upon  his  lo- 
cal bank.  The  plaintiff  can  recover  nothing  for  the  statement  concern- 
ing Boatright,  because  he  knew  when  it  was  made  that  it  was  false 
and  that  Boatright  was  a  faithless  rascal.  He  had  made  a  contract 
with  him  to  share  the  profits  of  the  swindle  he  had  agreed  to  perpe- 
trate. He  was  not  injured  by  that  statement.  The  defendants  vio- 
lated no  duty  they  owed  to  the  plaintiff  by  cashing  his  drafts  drawn 
upon  his  letter  of  credit  from  his  local  bank.  The  plaintiff  had  a  right 
to  draw  his  money  from  his  local  bank,  li  he  had  brought  an  action 
against  that  bank  to  recover  the  $5,000  which  he  had  on  deposit  there, 
it  would  have  been  no  defense  to  that  action  that  he  intended  to  bet  his 
money  on  a  fixed  foot  race,  that  he  was  sure  to  lose  it,  and  that  the 
bank  knew  it.  No  court  would  listen  to  such  a  defense.  The  defend- 
ants cannot  be  lawfully  cast  in  damages  for  assisting  the  plaintiff  to 
draw  his  money  from  tlie  bank  when  they  did  nothing  which  a  court 
would  not  have  done  in  the  face  of  a  defense  that  the  bank  knew  that 
he  was  about  to  lose  the  money  on  a  fraudulent  game.  A  plaintiff 
may  recover  the  purchase  price  of  goods  which  he  sells  and  delivers 
to  a  defendant  when  he  knows  that  the  latter  is  to  use  them  for  an  un- 
lawful purpose.  Holman  v.  Johnson,  1  Cowp.  341 ;  Tracy  v.  Talmage, 
14  N.  Y.  162,  170,  67  Am.  Dec.  132;  Graves  v.  Johnson,  179  Mass.  53, 
58,  60  N.  E.  383,  88  Am.  St.  Rep.  355 ;  Anheuser-Busch  Brewing  Ass'n 
v.  Mason,  44  Minn.  318,  321,  46  N.  W.  558,  9  L.  R.  A.  506,  20  Am. 
St.  Rep.  580.  And  the  bank  cannot  be  legally  liable  for  damages  which 
result  to  a  customer  from  his  own  folly  in  violating  the  moral  and  the 
civil  law  because  it  assists  him  by  a  lawful  act  to  procure  money  which 
he  is  lawfully  entitled  to  obtain,  although  it  divines  or  knows  that  he 
is  about  to  lose  it  in  a  transaction  in  which  it  takes  no  part  and  from 
which  it  receives  no  benefit. 

In  my  opinion,  the  judgment  against  the  bank  and  its  officers  is 
wrong,  and  it  should  be  reversed.*^ 

4  7  In  Hobbs  v.  Boatright  (1906)  195  Mo.  693,  724,  93  S.  W.  934,  9-38,  5  L.  R.  A. 
(N.  S.)  906,  113  Ain.  St.  Rep.  709,  referred  to  in  the  principal  ease  (page  291, 
supra),  the  court  said :  "If  the  case  at  bar  disclosed  but  one  transaction,  if 
we  should  shut  our  eyes  to  the  other  transaction  of  like  character  that  dis- 
tinguished the  history  of  this  Buekfoot  gang,  if  our  whole  attention  was  con- 
fined to  the  scheme  entered  into  by  the  plaintiff  with  Wasser  and  Fisher  in 
Oklahoma  and  the  denouement  at  Webb  City,  we  could  not  say  that  one  was 
less  guilty  than  the  other ;  it  was  a  scheme  of  dishonest  purpose  and  there 
is  no  justification  of  palliation  of  it,  and  if  there  was  nothing  else  in  the 
case  to  make  the  offense  of  one  more  enormous  than  the  other  we  would  not 
listen  for  a  moment  to  the  plaintiff's  prayer  for  relief,  and  if  we  do  listen  to 
him  and  grant  him  what  he  asks  it  is  not  through  any  consideration  of  wrongs 
suffered  by  him  but  in  tender  consideration  for  the  welfare  of  that  community 
whose  laws  have  been  defied  and  whose  public  morals  have  been  shocked  by 


Sec.  2)  CONTRACT   ILLEGAL  303 


WARE  V.  SPINNEY. 

(Supreme  Court  of  Kansas,  1907.     76  Kan.  2S9,  91  Pac.  787,  13  L.  R.  A.  [N.  S.] 

267,  1^  Ann.  Cas.  IISI.) 

Error  from  District  Court,  Shawnee  County ;  A.  W.  Dana,  Judge. 

Action  by  E.  C.  Spinney  against  M.  Ware.  Judgment  for  plaintiff, 
and  defendant  brings  error. 

Action  to  recover  $2,500  given  by  Edmund  C.  Spinney  to  M.  Ware 
for  the  alleged  purpose  of  paying  the  necessary  expenses  incident  to  the 
convening  of  the  board  of  directors  of  the  National  Aid  Association, 
but  which,  it  was  alleged,  was  not  used  for'that  purpose,  and  that  Ware 
had  refused  to  account  for  or  return  the  money  upon  demand.  Ware's 
answer  was  a  general  denial. 

On  the  trial  it  was  shown  that  $150  was  first  paid,  and  later  a 
payment  of  $2,350  was  made,  when  the  following  receipt  was  given : 
"Topeka,  Kans.,  Oct.  25,  1901.  Received  of  E.  C.  Spinney,  twenty- 
three  hundred  and  fifty  dollars  ($2,350)  to  be  used  to  pay  necessary 
expenses  of  combining  the  management  of  the  National  Aid  Asso. 
and  the  Bankers'  Union  of  the  World,  as  per  contract,  if  such  combi- 
nation shall  be  efiected,  and  to  be  returned  to  E.  C.  Spinney,  in  case 
it  is  not.     [Signed]  M.  Ware.    S.  D.  Cooley." 

The  trial  court  specially  found  that  $850  of  the  money  so  received  by 
Ware  was  expended  for  the  purpose  designated  and  that  no  part  of 
the  balance  was  thus  expended.  A  demand  for  the  return  of  the  mon- 
ey was  made  before  the  institution  of  this  action.  Defendant  contend- 
ed that  the  money  was  given  him  to  be  expended  in  an  unlawful  way 
to  induce  a  violation  of  a  trust.  The  trial  court  awarded  judgment  for 
plaintiff  for  $1,650  and  interest.     The  defendant  brings  error. 

Johnston,  C.  J.*"  *  *  *  It  is  contended  here  that  the  trans- 
action was  not  contrary  to  good  morals.  *  *  *  Assuming,  how- 
ever, that  the  purpose  was  unlawful,  as  some  of  the  testimony  tends  to 
show.  Spinney  was  not  barred  from  a  recovery  of  so  much  of  the 
money  as  was  unexpended.  The  general  rule  is  that  the  law  will  not 
aid  either  party  to  an  illegal  agreement,  but  an  exception  is  made 
where  the  illegal  agreement  or  purpose  has  not  been  carried  out.    This 

fhis  gang  of  bad  men,  and  to  bring  them  to  the  bar  of  justice.  The  learned 
law  writer  whose  text  we  have  lust  above  quoted  in  section  941  (I'omeroy's 
Equity  Jurisprudence)  says:  'To  the  foregoing  rules  there  is  an  important 
limitation.  Even  where  the  contracting  parties  are  in  pari  delicto,  the  courts 
may  interfere  from  motives  of  public  policy.  Whenever  public  policy  is  con- 
sidered as  advanced  by  allowing  either  party  to  sue  for  relief  against  the 
transaction  then  relief  is  given  to  hiui.'  In  the  case  before  us  we  hold  that 
public  policy  is  advanced  by  allowing  the  plaintiff  to  recover  the  money  of 
which  he  was  defrauded." 

See,  also,  Lockman  v.  Cobb  (1905)  77  Ark.  279,  91  S.  W.  546 ;  Falkenberg  v. 
Allen  (1907)  18  Okl.  210,  90  Pac.  415,  10  Ij.  R.  A.  (N.  S.)  494. 

Compare  Schmitt  v.  Gibson  (1910)  12  Cal.  App.  407,  107  Pac.  571. 

48  The  statement  of  facts  is  abridged  and  portions  of  the  opinion  are  omit- 
ted. 


304      BENEFITS  UNDER  CONTRACT  PARTIALLY  PERFORMED    (Ch.  3 

was  not  an  action  to  enforce  the  agreement  between  Spinney  and  his 
agent,  Ware,  nor  is  the  judgment  rendered  by  the  court  in  any  sense 
an  affirmance  of  the  agreement.  Granting  that  the  purpose  of  the 
parties  is  unlawful,  the  action  is  rather  a  repudiation  of  that  purpose 
and  a  disaffirmance  of  the  agreement.  "The  broad  rule  has  been  laid 
down  that,  when  money  or  property  is  delivered  by  a  principal  to  his 
agent  for  an  illegal  purpose  or  carrying  into  execution  an  illegal  con- 
tract, the  agent  cannot  set  up  such  illegal  object  to  prevent  a  recovery 
by  the  principal  from  the  agent  of  such  money  or  property  so  long  as 
it  remains  in  his  hands."  15  A.  &  E.  Encyc.  of  Law,  1009.  In  the 
note  accompanying  this  text  may  be  found  a  large  number  of  sustain- 
ing authorities.  The  agent  cannot  retain  the  money  merely  because 
the  transaction  in  contemplation  was  illegal.  The  illegality  that  de- 
feats a  recovery  of  the  money  is  not  in  the  intent  alone.  It  has  been 
well  said :  "Persons  may  not  be  punished  either  in  civil  or  criminal 
courts  for  unlawful  intentions.  It  is  the  consummation  of  these  un- 
lawful intentions  that  places  a  party  without  the  law.  If  the  unlaw- 
ful intention  is  not  carried  out,  if  nothing  is  done  under  it,  my  servant 
has  my  property  and  I  am  entitled  to  its  return.  As  in  the  present  case 
he  is  acting  under  a  special  agency  which  I  have  a  right  to  revoke  at 
any  time  before  the  performance,  and  when  so  revoked  I  am  entitled 
to  my  own.  It  cannot  be  better  public  policy  to  deny  me  a  recovery 
of  the  stock  than  to  encourage  my  agent  to  commit  a  criminal  offense." 
Wassermann  v.  Sloss,  117  Cal.  425,  49  Pac.  566,  38  L.  R.  A.  176,  59 
Am.  St.  Rep.  209. 

Until  the  contemplated  action  is  executed,  the  money  converted  to 
the  illegal  use,  the  parties  are  given  an  opportunity  to  repent  and  re- 
scind, and  the  doctrine  of  locus  poenitentiae,  as  it  is  called,  is  applied. 
"Seeing  the  error  of  his  ways  the  law  says  a  party  may  withdraw  from 
the  transaction ;  and  it  extends  to  him  a  helping  hand  by  oft'ering  him 
the  inducement  of  giving  back  to  him  anything  of  value  with  which  he 
has  parted."  Wassermann  v.  Sloss,  supra.  The  same  view  was  well 
expressed  by  the  Supreme  Court  of  Maine  where  it  was  said  that: 
"The  law  encourages  a  repudiation  of  the  illegal  contract,  even  by  a 
guilty  participator,  as  long  as  it  remains  an  executory  contract  or  the 
illegal  purpose  has  not  been  put  in  operation.  *  *  *  Jt  ^ggt  com- 
ports with  public  policy  to  arrest  the  illegal  transaction  before  it  is  con- 
summated." Tyler  v.  Carlisle,  79  Me.  210,  9  Atl.  356,  1  Am.  St.  Rep. 
301.  In  Morgan  v.  Groff,  4  Barb.  (N.  Y.)  524,  it  was  said  "that  as  long 
as  the  money  deposited  with  an  agent  for  an  illegal  purpose  remains 
unemployed,  or  if  the  purpose  be  countermanded  by  the  principal  be- 
fore its  application,  it  is  a  debt  which  can  he  recovered  from  the  agent 
by  the  principal,  either  at  law  or  in  equity." 

The  principle  of  these  cases  has  been  adopted  and  applied  in  this 
state.  In  the  case  of  Hardy  v.  Jones,  63  Kan.  8,  64  Pac.  969,  88  Am. 
St.  Rep.  223,  an  action  was  brought  by  a  principal  to  require  his  agents 
to  account  to  him  for  money  placed  in  their  hands  to  purchase  prop- 


Sec.  2)  CONTRACT  ILLEGAL  305 

erty  at  a  judicial  sale,  under  an  agreement  which  had  for  its  purpose 
the  suppression  of  competition  at  the  sale.  After  the  sale  there  re- 
mained in  the  hands  of  the  agents  a  portion  of  the  fund  placed  in  their 
hands,  and  they  refused  to  account  for  this,  on  the  ground  that  their 
agreement  was  void  as  against  public  policy.  The  court  refused  to 
listen  to  this  reason  or  excuse,  saying:  "That  as  long  as  an  illegal 
contract  remains  unexecuted  neither  party  can  be  held  to  its  terms.  At 
any  time  before  Hardy  and  Turbish  had  acted  in  behalf  of  Jones,  the 
latter  might  have  revoked  their  authority  or  they,  upon  their  part, 
might  have  refused  to  execute  their  agency,  but  even  in  such  case  the 
agents  could  have  been  compelled  to  account  to  their  principal  for  his 
money.  So  likewise  will  they  be  compelled  to  account  for  any  unex- 
pended balance  remaining  over  from  the  execution  of  the  illegal  agree- 
ment. The  surplus  money  now  held  by  them  is  not  held  in  pursuance 
of  an  illegal  agreement  to  suppress  competition  at  a  judicial  sale.  The 
sale  has  been  had,  and  the  unexpended  purchase  money  is  now  held  by 
the  plaintiff  in  error  the  same  as  they  would  hold  any  other  money 
of  the  defendant  in  error."  See,  also,  Pollock  v.  Agner,  54  Kan.  618, 
38  Pac.  781 ;  Peters  v.  Grim,  149  Pa.  164,  24  Atl.  192,  34  Am.  St.  Rep. 
599;  Adams  Express  Co.  v.  Reno,  48  Mo.  264;  Bank  v.  Wallace,  61 
N.  H.  24;  Norton  v.  Blinn,  39  Ohio  St.  145 ;  Kiewert  v.  Rindskopf,  46 
Wis.  481,  1  N.  W.  163,  32  Am.  Rep.  731;  Clarke  v.  Brown,  ^77  Ga. 
606,  4  Am.  St.  Rep.  98 ;  Congress,  etc..  Springs  Co.  v.  Knowlton,  103 
U.  S.  49,  26  L.  Ed.  347;  Wood  on  Master  and  Servant,  §  202;  Dun- 
lap's  Paley  on  Agency,  *66;  9  Cyc.  554-557. 

The  fact  that  Ware  was  an  officer  of  and  owed  duties  to  the  National 
Aid  Association  does  not  affect  the  application  of  the  rule  requiring 
him  to  account  for  the  money  received  and  not  yet  disbursed.  It  is 
assumed  that  he  was  acting  unlawfully,  but  he  was  acting  as  the  repre- 
sentative of  Spinney,  and  held  Spinney's  money  to  be  used  for  the  pur- 
pose stated.  Under  the  rule  of  the  authorities,  it  is  his  duty  to  ac- 
count to  Spinney  for  the  unexpended  portion  of  the  money,  and  this 
duty  does  not  arise  out  of  the  illegal  agreement  and  purpose,  but  out 
of  the  receipt  and  retention  of  the  money  of  another,  and  which  has 
not  been  converted  to  the  proposed  illegal  use.     *     *     * 

The  judgment  will  therefore  be  affirmed.  All  the  Justices  concur- 
ring." 

4  9  In  IMorsran  v.  Groff  (1S4S)  4  Barb.  (N.  T.)  .524.  plaintifC  gave  his  check 
for  .$50  to  defendant,  with  instructions  to  make  a  bet  therewitli  witli  one 
Thompson  on  the  presidential  election  and  to  return  the  money  if  that  bet 
was  not  made.  Defendant,  however,  wagered  the  money  with  other  persons 
and  lost  Plaintiff  was  allowed  to  recover  from  defendant  in  money  had  and 
received,  on  the  ground  that  the  contract  was  still  executory ;  the  court  say- 
ing :  "If  the  defendant  was  merely  the  agent  of  the  plaintiff  in  making  the 
contemplated  bet  with  Thompson — and  this  is  all  the  proof  makes  out — the 
defendant  cannot  excuse  himself  from  paying  over  the  money,  because  It  was 
sent  to  him  for  an  illegal  purpose.  As  long  as  money  deposited  with  an  agent 
for  an  illegal  purpose  remains  unemployed,  or  if  the  purpose  be  countermanded 
Thues.Quasi  Cont. — 20 


306  BENEFITS   UNDER   CONTRACT   PARTIALLY   PERFORMED         (Ch.  3 

TENANT  V.  ELLIOTT. 

(Court  of  Common  Pleas,  1797.    1  Bos.  &  P.  2.) 

Assumpsit  for  money  had  and  received.    Verdict  for  the  plaintiff. 

The  defendant,  being  a  broker,  effected  an  insurance  for  the  plain- 
tiff, a  British  subject,  on  goods  from  Ostend  to  the  East  Indies,  on 
board  the  "Koenitz,"  an  Imperial  ship.  The  ship  being  lost,  the  un- 
derwriters paid  the  amount  of  the  insurance  to  the  defendant,  who, 
without  any  intimation  from  them  to  retain  the  money,  refused  to  pay 
it  over  to  the  plaintiff. 

Shepherd,  Serjt.,  now  moved  for  a  rule  to  shew  cause  why  the  ver- 
dict in  this  case  should  not  be  set  aside  and  a  non-suit  entered.  By  7 
Geo.  I.,  Stat.  1,  c.  21,  §  2,  it  is  enacted:  "That  all  contracts  and  agree- 
ments whatsoever  made  or  entered  into  by  any  of  His  Majesty's  sub- 
jects, or  any  person  or  persons  in  trust  for  them,  for  or  upon  the  loan 
of  any  monies  by  way  of  bottomry  on  any  ship  or  ships  in  the  service 
of  foreigners,  and  bound  or  designed  to  trade  in  the  East  Indies,  or 
parts  in  the  said  act  before  mentioned ;  and  all  contracts  and  agree- 
ments whatsoever  made  by  any  of  His  Majesty's  subjects,  or  any  per- 
son or  persons  in  trust  for  them,  for  the  loading  or  supplying  any  such 
ship  or  ships  with  a  cargo  or  lading  of  any  sort  of  goods,  merchandize, 
treasure,  or  effects,  or  with  any  provisions,  stores,  or  necessaries,  shall 
be  and  are  hereby  declared  to  be  void."  Now  the  goods  on  board  the 
''Koenitz"  being  the  property  of  the  plaintiff,  a  subject  of  Great  Brit- 
ain, and  the  "Koenitz"  being  a  foreign  ship,  bring  this  transaction 
within  the  provisions  of  the  above  act. 

BuLLER,  J.  Is  the  man  who  has  paid  over  money  to  another's  use 
to  dispute  the  legality  of  the  original  consideration?  Having  once 
waived  the  legality,  the  money  shall  never  come  back  into  his  hands 
again.  Can  the  defendant  then  in  conscience  keep  the  money  so  paid? 
For  what  purpose  should  he  retain  it?  To  whom  is  he  to  pay  it  over, 
who  is  entitled  to  it  but  the  plaintiff? 

Eyre,  Ch.  J.  The  defendant  is  not  like  a  stakeholder.  The  ques- 
tion is.  Whether  he  who  has  received  money  to  another's  use  on  an 
illegal  contract,  can  be  allowed  to  retain  it,  and  that  not  even  at  the 
desire  of  those  who  paid  it  to  him?    I  think  he  cannot. 

The  defendant  took  nothing  by  his  motion,*"* 

by  the  principal  before  its  application,  it  is  a  debt  whicli  may  be  recovered 
from  the  agent  by  the  principal,  either  at  law  or  in  equity." 

See,  also,  Bone  v.  Ekless  (1860)  S.,  H.  &  N.  925,  where  a  principal  was  al- 
lowed to  recover  from  his  agent  money  given  the  latter  to  bribe  a  Turkish 
official  for  the  purpose  of  obtaining  a  contract  with  the  Turkish  government. 
The  contract  had  been  obtained,  but  the  bribe  had  not  yet  been  paid  to  the 
official. 

6  0  In  Gordon  v.  Chief  Commissioner  of  Metropolitan  Police,  [1910]  2  K.  B. 
1080,  plaintiff  won  money  by  "street  betting"  in  violation  of  a  statute.  This 
money  was  seized  by  the  police  in  a  raid  and  used  as  evidence  in  convicting 
plaintifiTs  agent,  although  plaintiff  was  acquitted.     Plaintiff  brought  suit  for 


Sec.  2)  CONTRACT  ILLEGAL  307 

NORTON  V.  BLINN. 

(Supreme  Court  of  Ohio,  1883.    39  Ohio  St  145.) 

Error  to  the  District  Court  of  Lucas  County. 

About  the  first  of  May,  1872,  Chester  BHnn  placed  in  the  hands  of 
Jesse  S.  Norton,  at  Toledo,  Ohio,  tlie  sum  of  $500  to  be  by  him  in- 
vested as  agent  for  Blinn  in  options  on  wheat  at  Milwaukee,  Wiscon- 
sin, or  Chicago,  Illinois,  with  instructions  to  invest  the  money  as  he 
would  his  own.  Norton,  through  his  brokers,  James  Keller  &  Co.,  im- 
mediately purchased  in  his  own  name,  but  for  the  sole  benefit  of  Blinn, 
five  thousand  bushels  of  wheat  at  seller's  option  for  June  delivery  at 
$1.42^  per  bushel,  and  deposited  the  money  of  Blinn  as  a  margin  of 
ten  cents  per  bushel.  At  the  date  for  delivery  the  price  of  wheat  had 
advanced  so  that  a  profit  of  $325  was  realized  on  the  transaction.  This 
money,  principal  and  profit,  was  reinvested  by  Norton  in  subsequent 
transaction  of  like  nature  for  Blinn's  benefit,  but  by  reason  of  a  de- 
cline in  the  market  price  of  wheat  in  the  latter  part  of  June,  the  whole 
amount  was  lost. 

These  transactions  were  mere  speculations  or  ventures  on  the  fu- 
ture price  of  wheat,  without  any  intention  that  tlie  wheat  would  be  ei- 
ther paid  for  or  delivered,  but  with  the  intention  that  settlement  be- 
tween the  buyer  and  seller  would  be  made  on  the  difference  between 
the  price  stated  in  the  contract  and  the  market  price  at  the  date  named 
for  delivery.  Such  transactions  were  unlawful  in  tlie  states  of  Illinois 
and  Wisconsin,  as  well  as  in  the  state  of  Ohio. 

The  original  suit  was  brought  in  the  court  of  common  pleas  of  Lucas 
county  by  Blinn  against  Norton  to  recover  the  sum  of  $825,  (tlie  sum 
advanced  and  profit  on  the  first  venture,)  with  interest. 

On  the  trial  testimony  was  offered  by  the  plaintiff  tending  to  prove 
that  defendant  had  no  authority  to  invest  plaintitT's  money  save  in  a 
single  purchase,  namely,  the  purchase  of  5,000  bushels  as  above  stated, 
whereupon  the  plaintiff  requested  the  court  to  instruct  the  jury  as  fol- 
lows:  "If  the  jury  shall  find  from  the  testimony,  that  on  or  about  the 
time  stated  in  the  petition,  the  defendant  received  from  the  plaintiff  the 
sum  of  $500  of  the  money  of  the  latter,  under  an  arrangement  that  the 
same  should  be  invested  by  the  defendant  in  wheat  transactions,  of  the 
illegal  character  mentioned  in  the  answer,  for  the  benefit  of  the  plain- 
tiff ;  that  said  money  was  so  invested  by  the  defendant,  and  a  profit 
realized  thereon ;  and  that  before  the  commencement  of  this  action  said 
sum  of  $500,  and  the  profits  so  made,  came  into  and  are  still  in  the 
hands  of  the  defendant;  or  that  he  received  credit  therefor  in  the 
final  settlement  of  his  accounts  with  the  brokers  through  whom  said 

the  money  and  at  the  trial  admitted  that  he  had  gotten  the  money  by  street 
betting.  Held  for  plaintiff,  the  court  saying  that  the  money  was  plaintiff's 
money,  even  though  it  had  been  imlawfully  obtained.  How  plaintiff  got  the 
money  was  no  part  of  plaintiff's  cause  of  action  against  defendant. 


308       BENEFITS  UNDER  CONTRACT  PARTIALLY  PERFORMED    (Cll.  3 

business  was  transacted,  then  the  plaintiff  is  entitled  to  recover  said 
money  from  the  defendant;  nor,  in  such  case,  can  the  defendant  avoid 
his  liability  to  account  for  said  moneys  by  showing  that  by  the  under- 
standing bjetween  the  plaintiff  and  himself,  said  money  was  to  be  em- 
ployed in  illegal  transactions  in  wheat  of  the  nature  stated  in  his  an- 
swer; and  that  said  money  was  employed,  and  said  profits  realized  in 
such  transactions."  Which  charge  the  court  refused  to  give,  and  to 
such  refusal  the  plaintiff,  by  his  counsel,  then  and  there  excepted. 

The  verdict  of  the  jury  was  in  favor  of  the  defendant,  and  judgment 
was  rendered  accordingly.  This  judgment  on  petition  in  error  was 
reversed  by  the  district  court,  and  this  proceeding  is  to  reverse  the 
judgment  of  tlie  district  court. 

McIlvaind,  J.  While  it  has  ever  been  the  policy  of  the  law  to 
leave  the  parties  to  an  illegal  transaction  where  it  finds  them  by  re- 
fusing relief  to  either  in  respect  thereto,  it  has,  on  the  other  hand, 
never  regarded  property  or  money  employed  therein  or  produced 
tliereby  as  common  plunder  to  be  seized  or  retained  by  others  in  no 
way  interested  in  such  business. 

The  question,  however,  in  this  case,  arising  on  the  refusal  of  the 
court  of  common  pleas  to  charge  the  jury  as  requested  by  the  plaintiff 
is :  May  an  agent  who  has  transacted  illegal  business  for  his  principal 
and  has  received  m^oney  belonging  to  his  principal  and  accruing  from 
such  business,  defend  himself,  in  a  court  of  law,  against  liability  to 
account  therefor,  by  showing  such  unlawful  business  and  his  connec- 
tion therewith  as  such  agent? 

If  the  agent  receiving  such  money  had  not  been  employed  in  con- 
ducting such  business,  it  would  seem  to  be  quite  plain,  upon  principles 
of  purest  morality,  that  he  should  account  to  his  principal  therefor; 
but  where  the  sole  employment  of  the  agent  was  to  manage  and  con- 
duct the  unlawful  transactions,  it  seems  to  me,  a  much  more  difficult 
question  arises.  In  the  latter  case  the  agent  is  a  particeps  criminis. 
In  offenses  against  trade,  and  the  like,  the  law,  regulating  the  adminis- 
tration of  penal  justice,  does  not  recognize  the  relation  of  principal  and 
agent,  unless  the  agent  be  an  innocent  instrument  merely.  In  such 
cases  the  guilty  offenders  against  the  law  are  all  principals;  hence, 
as  between  such,  with  some  show  of  reason  it  might  be  said,  that  the 
law  will  afford  no  redress  by  civil  remedies. 

The  rulings  upon  this  question,  however,  have  been  so  uniformly 
the  other  way,  it  becomes  our  duty  to  follow  them,  unless  we  find  them 
totally  repugnant  to  public  policy  and  morality.  Upon  a  careful  ex- 
amination of  the  authorities,  we  find  no  such  repugnancy — indeed  they 
commend  themselves  to  our  judgment. 

In  the  first  place  the  rule  which  denies  civil  remedies  in  such  cases 
applies  only  to  the  parties  to  the  illegal  transaction.  Public  policy 
does  not  require  that  one  engaged  in  an  unlawful  enterprise  should,  by 
pleading  it,  shield  himself  from  liability  for  the  wages  of  his  em- 
ployees, agents  or  servants.    It  is  enough  that  the  rule  should  be  en- 


Sec.  2)  CONTRACT   ILLEGAL  309 

forced  as  between  those  who  have  some  interest  in  the  enterprise  as 
principals. 

In  the  second  place,  it  is  contrary  to  public  policy  and  good  morals, 
to  permit  employees,  agents  or  servants  to  seize  or  retain  the  property 
of  their  principal,  although  it  may  be  employed  in  illegal  business  and 
under  their  control.  No  consideration  of  public  poHcy  can  justify  a 
lowering  of  the  standard  of  moral  honesty  required  of  persons  in  these 
relations. 

And  again,  if  parties  to  an  illegal  contract,  waive  the  illegality,  and 
honestly  account  as  between  themselves,  no  other  person  can  be  heard 
to  complain  of  such  accounting.  Hence,  we  think,  that  if  in  making 
such  settlement  one  of  the  guilty  parties  should  deliver  property  or 
money  to  an  agent  of  another  to  be  delivered  by  the  agent  to  his  prin- 
cipal, such  agent  is  bound  to  account  therefor  to  his  principal. 

A  leading  case  on  this  question  is  Tenant  v.  Elliott,  1  Bos.  &  Pul.  2, 
where  the  defendant,  a  broker,  affected  an  illegal  insurance  for  the 
plaintiff  on  a  ship,  and  after  a  loss  the  underwriters  paid  the  amount 
of  the  insurance  to  the  defendant,  who  refused  to  pay  the  same  over  to 
plaintiff,  on  the  ground  that  the  insurance  contract  was  illegal.  Judg- 
ment for  the  plaintiff.  Eyre,  C.  J.,  said :  "The  defendant  is  not  like 
a  stakeholder.  Whether  he  who  has  received  money  to  another's  use 
on  an  illegal  contract,  can  be  allowed  to  retain  it,  and  that  not  even 
at  the  desire  of  those  who  paid  it  to  him  ?    I  think  he  cannot." 

In  Brooks  v.  Martin,  2  Wall.  70,  17  L.  Ed.  732,  it  was  held  by  the 
supreme  court  of  the  United  States,  that  "after  a  partnership  contract 
confessedly  against  public  policy  has  been  carried  out,  and  money  con- 
tributed by  one  of  the  partners  was  passed  into  other  forms — the  re- 
sults of  the  contemplated  operation  completed,  a  partner  in  whose 
hands  the  profits  are,  cannot  refuse  to  account  for  and  divide  them  on 
the  ground  of  the  illegal  character  of  the  original  contract." 

In  Baldwin  v.  Potter,  46  Vt.  402,  it  was  held  that  "an  agent  is  bound 
to  account  to  his  principal  for  money  received  in  the  course  of  his 
agency,  for  goods  sold  by  his  principal  on  orders  obtained  by  him  as 
such  agent  on  commission,  although  such  sales  as  between  the  principal 
and  purchaser  be  illegal  and  void." 

In  Evans  v.  Trenton,  4  Zab.  (24  N.  J.  Law)  764,  it  was  held :  "The 
mere  agent  of  a  party  to  an  illegal  transaction  cannot  set  up  the  illegal- 
ity of  the  transaction  in  a  suit  by  his  principal  to  recover  money  that 
has  been  paid  to  such  agent  for  his  principal  on  account  of  the  illegal 
transaction.  This  defense  can  be  set  up  only  by  a  party  to  the  illegal 
transaction."  In  this  case  the  illegal  transaction  was  accomplished 
through  the  agent. 

See,  also.  Wood  on  Master  and  Servant,  section  202,  where  it  is  said : 
"While  the  courts  will  not  enforce  an  illegal  contract,  yet,  if  a  servant 
or  agent  of  another  has,  in  the  prosecution  of  an  illegal  enterprise  for 
his  master,  received  money  or  other  property  belonging  to  the  master, 
he  is  bound  to  turn  it  over  to  him,  and  cannot  shield  himself  from  lia- 


310  BENEFITS  UNDER  CONTRACT  PARTIALLY  PERFORMED         (Ch.  3 

bility  therefor  upon  the  ground  of  the  illegality  of  the  original  trans- 
action." 

The  doctrine  of  these  autliorities,  and  many  others  which  might  be 
cited  is  recognized,  applied  and  enforced  in  German,  &c..  Church  v. 
Stegner,  21  Ohio  St.  488,  wherein  it  is  held:  "While  a  promissory 
note  given  to  and  discounted  by  a  corporation  for  a  loan  of  money  in 
the  course  of  an  unauthorized  banking  business  will  not  be  enforced, 
yet  where  the  treasurer  of  such  corporation  has  taken  and  appropri- 
ated to  his  private  use  moneys  deposited  with  it  contrary  to  the  statute 
against  unauthorized  banking,  and  being  unable  when  called  on  to  re- 
fund the  same,  secures  it  by  his  promissory  note,  such  note  will  not  be 
held  to  have  been  given  in  the  course  and  furtherance  of  an  illegiti- 
mate business,  and  an  action  will  lie  thereon." 

Judgment  of  district  court  affirmed."*^ 

61  In  Baldwin  v.  Potter  (1874)  46  Vt.  402,  plaintiffs  employed  defendant  to 
solicit  orders  for  and  sell  an  article  called  "prize  candy"  on  commission.  It 
was  part  of  defendant's  duty  to  make  collections  for  candy  sold  by  Mm  and 
to  pay  the  amounts  collected  to  plaintiffs  on  demand.  Defendant  resist- 
ed plaintiffs'  action  of  general  assumpsit  to  recover  tbe  amount  of  collections 
made  by  defendant  on  the  ground  that  the  scheme  under  which  the  prize  candy 
was  sold  constituted  a  violation  of  the  statute  prohibiting  the  setting  up  of 
a  lottery.  The  court  held  for  plaintiff;  Pierpoint,  C.  J.,  saying:  "We  do  not 
tind  it  necessary  in  this  case  to  consider  the  question  as  to  whether  the  con- 
tract for  the  sale  of  the  property  referred  to,  by  the  plaintiffs,  to  the  several 
persons  who  purchased  it,  were  contracts  made  in  violation  of  law,  and  there- 
fore void,  or  not.  This  action  is  not  between  the  parties  to  those  contracts: 
neither  is  it  founded  upon,  or  brought  to  enforce,  them.  If  those  contracts 
were  illegal,  the  law  will  not  aid  either  party  in  respect  to  them;  it  will  not 
allow  the  seller  to  sue  for  and  recover  the  price  of  the  property  sold,  if  it  has 
not  been  paid ;  if  it  has  been  paid,  the  purchaser  cannot  sue  for  and  recover 
it  back.  The  facts  in  this  case  show  that  the  purchasers  paid  the  money  to 
the  plaintiffs,  not  to  the  plaintiffs  personally,  but  to  the  defendant  as  the 
agent  of  the  plaintiffs,  authorized  to  receive  it.  When  the  money  was  so  paid, 
it  became  the  plaintitt"s  money,  and  when  it  was  received  by  the  defendant  as 
such  agent,  the  law,  in  consideration  thereof,  implies  a  promise  on  the  part 
of  the  defendant,  to  pay  it  over  to  his  principals,  the  plaintiffs;  it  is  this 
obligation  that  the  i)resent  action  is  brought  to  enforce;  no  illegality  attaches 
to  this  contract.  But  the  defendant  insists  that,  inasmuch  as  the  plaintiff" 
could  not  have  enforced  the  contracts  of  sale  as  between  himself  and  the  pur- 
chaser, therefore,  as  the  purchaser  has  performed  the  contracts  by  paying  the 
money  to  the  plaintiffs  through  me,  as  their  agent,  I  can  now  set  up  the  il- 
legality of  the  contract  o£  sale  to  defeat  an  action  brought  to  enforce  a  con- 
tract on  my  part  to  pay  the  money  tliat  I  as  agent  receive,  over  to  my  prin- 
cipal. In  other  words,  because  my  principal  did  not  receive  the  money  on  a 
legal  contract,  I  am  at  liberty  to  steal  the  money,  appropriate  it  to  my  own 
use,  and  set  my  principal  at  detiance.  We  think  the  law  is  well  settled  other- 
wise, and  the  fact  that  the  defendant  acted  as  the  agent  of  the  plaintiffs  in 
obtaining  orders  for  the  goods,  does  not  vary  the  case.  Tenant  v.  Elliott,  1 
B.  &  P.  3;  Armstrong  v.  Toler,  11  Wheat.  258,  6  L.  Ed.  468;  Evans  v.  City 
of  Trenton,  4  Zab.  (24  N.  J.  Law)  764." 

In  Lemon  v.  Grosskopf  (1868)  22  Wis.  447,  99  Am.  Dec.  58,  plaintiff,  the 
proprietor  of  an  illegal  lottery  scheme,  employed  defendant  to  sell  tickets 
for  the  lottery.  Defendant  having  sold  258  tickets  at  a  dollar  a  piece  and 
having  received  for  transmission  to  plaintiff'  from  one  Kilgore  (another  agent 
of  plaintiff)  the  sum  of  $255  received  by  Kilgore  on  the  sale  of  lottery  tickets, 
gave  plaintiff  his  note  for  the  total  amount.  To  an  action  on  this  note  de- 
fendant interposed  the  defense  of  illegality.  The  court,  per  Cole,  J.,  said : 
^*The  defendant  was  employed  by  the  plaintiff  to  sell  these  lottery  tickets. 


Sec.  2)  CONTRACT   ILLEGAL  311 

receive  and  retain  the  money  for  them  until  he  became  satisfied  that  the 
drawing  of  the  prizes  in  the  selieme  was  fairly  conducted,  and  then  account 
to  the  plaintiff.  It  was  as  well  a  part  of  his  agency  to  receive  and  account 
for  the  money  as  to  sell  the  tickets.  And  an  action  to  recover  this  money 
goes  in  affirmance  of  the  illegal  contract  and  to  enforce  the  performance  of 
this  duty.  The  main  object  of  the  agency  was  to  do  an  act  criminal  by  our 
statute  (Rev.  St.  1858,  §  2,  c.  169), — to  engage  In  a  traffic  not  merely  forbidden 
but  fraudulent  and  indictable.'  And  if  the  agent  is  dishonest  in  the  transac- 
tion of  the  business, — if  he  refuses  to  account  for  money  which  he  has  secured 
for  the  tickets  sold  by  him, — should  the  court  interfere  and  enforce  a  per- 
formance of  his  duty?  It  seems  to  us  that  the  court  must  decline  to  inter- 
fere on  either  side  upon  the  maxim,  'Ex  turpi  causa  non  oritur  actio.'  *  *  * 
But  the  money  which  the  defendant  received  from  Kilgore  stands  upon  dif- 
ferent grounds.  So  far  as  that  money  was  concerned,  it  seems  to  us  that 
it  stands  precisely  on  the  same  ground  it  would  had  Kilgore  delivered  the  mon- 
ey to  some  stranger,  or  to  an  express  company,  to  transmit  it  to  the  plaintiff. 
It  is  disconnected  with  the  illegal  transaction,  and  is  not  aft'ected  by  it.  It  is 
the  case  suggested  by  the  Master  of  the  Rolls  in  Thomson  v.  Thom.son,  7  Ves. 
468,  471,  of  money  paid  into  the  hands  of  a  third  person  for  the  use  of  the 
plaintiff',  who  may  recover  the  same  from  such  third  person,  although  the 
money  is  the  proceeds  of  some  illegal  transaction.  Merritt  v.  Millard,  5  Bosw. 
(N.  Y.)  645.  Therefore,  so  far  as  respects  the  .$255  paid  the  defendant  by  Kil- 
gore for  the  plaintiff,  the  action  is  maintainable." 

See,  also,  Ruemmeli  v.  Cravens  (1903)  1.3  Okl.  342.  74  Pac.  90S. 

Partnership  for  Illegal  Purpose.— By  the  better  doctrine,  one  partner 
cannot  recover  from  a  copartner  the  fruits  of  an  illegal  partnership.  The 
Highwayman's  Case  (1725)  -9  Law  Quart.  Rev.  197:  McMullen  v.  Hoffman 
(1899)  174  U.  S.  639,  19  Sup.  Ct.  8.39,  43  L.  Ed.  1117  (a  bill  in  equity— virtually 
overruling  Brooks  v.  Martin  [1863]  2  Wall.  70,  17  L.  Ed.  732) ;  Central  Trust 
&  Safe  Deposit  Co.  v.  Sharp  (1902)  112  Kv.  606,  6(i  S.  W.  421,  56  L.  K.  A.  479, 
99  Am.  St.  Rep.  317.  Contra:  McDonald  v.  Lund  (1896)  13  Wash.  412,  43 
Pac.  348. 

In  McMullen  v.  Hoffman,  supra,  Peckham,  J.,  distinguishing  Tenant  v.  El- 
liott, 1  Bos.  &  Pul.  2  (i)age  306,  supra),  and  Farmer  v.  Russell.  1  Bos.  &  Pul. 
295,  said  :  "The  difference  in  the  principle  upon  which  a  recovery  was  al- 
lowed in  these  two  cases  and  that  upon  which  the  defense  in  this  case  is  based 
is  very  clear.  In  the  case  before  us  the  cause  of  action  grows  directly  out  of 
the  illegal  contract,  and  if  the  court  distributes  the  profits  it  enforces  the 
contract  which  is  illegal.  But  where  A.  claims  money  from  B.,  although  due 
upon  an  illegal  contract,  and  B.  acknowledges  the  obligation  and  waives  the 
defense  of  illegality  and  pays  the  money  to  a  third  party  uinm  his  promise 
to  pay  it  to  A.,  the  third  party  cannot  successfully  defend  an  action  brought 
by  A.  to  recover  the  money  by  alleging  that  the  originab  contract  between  A. 
and  B.  was  illegal.  Tliis  is  the  principle  decided,  and  we  think  correctly  de- 
cided, in  the  cases  cited." 

Sunday  Contracts. — For  a  brief  discussion  of  quasi  contractual  obligations 
in  connection  with  contracts  made  or  to  be  performed  on  Sunday  in  jurisdic- 
tions where  such  contracts  are  prohibited  by  law,  see  Woodward,  Quasi  Con- 
tracts, §  153.     See,  also,  15  Colnmbia  Law  Review,  619. 

CiiAMPERTous  Contracts.— As  to  the  right  of  an  attorney  to  recover  the 
value  of  services  rendered  his  client  under  a  chamiiertous  contract,  see  note 
in  Ann.  Cas.  1913B,  1091. 


312  BENEFITS  UNDER  CONTRACT  PARTIALLY   TERFORMED         (Ch.  3 


SECTION  3.— CONTRACT  UNENFORCEABLE  BECAUSE  OF 
STATUTE  OF  FRAUDS 

I.  Deifendant  Refudiates  " 


RICHARDS  V.  ALLEN. 
(Supreme  Judicial  Court  of  Maine,  1S40.     17  Me.  206.) 

Exceptions  from  the  Court  of  Common  Pleas;  Redington,  J.,  pre- 
siding. 

Assumpsit  for  a  quantity  of  bricks  delivered  in  1829,  and  a  yoke  of 
oxen  delivered  January  27,  1832.  The  writ  was  dated  January  27, 
1838.  Eighteen  or  twenty  years  before  the  commencement  of  the  suit, 
the  plaintiff  contracted  verbally  with  the  defendant  for  the  purchase 
of  a  farm,  and  entered  upon  the  farm  under  that  verbal  contract,  and 
lived  thereon  until  the  time  of  trial.  The  bricks  and  the  oxen  were 
delivered  at  the  respective  times  charged  in  part  payment  of  the  farm, 
under  the  verbal  contract  for  the  purchase  thereof.  The  plaintiff 
proved  that  the  defendant,  in  the  spring  of  the  years  1837  and  1838, 
told  the  plaintiff  that  he  supposed  the  plaintiff  had  paid  for  about  one 
half  the  farm  by  way  of  the  oxen  and  bricks ;  that  he  was  ready  to 
give  a  deed  of  the  farm;  and  that  he  would  see  Stubbs  and  Dickey, 
and  come  in  a  few  days  to  the  plaintiff's  house,  and  give  the  plaintiff 
or  his  son  a  deed.  The  defendant  conveyed  the  same  to  one  Stubbs 
by  deed  dated  January  18,  1838.    The  defendant,  for  the  purpose  of 

82  "The  statute  provides  that  no  action  shall  be  sustained  upon  certain  con- 
tracts, unless  they  are  evidenced  by  writing.  It  operates  therefore  upon  the 
contract,  only  while  it  is  executory.  It  does  not  make  the  performance  of 
such  a  contract  unlawful,  but  if  the  parties  choose  to  perform  it,  tlie  contract 
remains  in  full  force,  notwithstanding  the  statute,  so  far  as  relates  to  the 
legal  efTect  and  consequences  of  what  has  been  done  under  it.  Hence  a  party 
may  always  defend  under  such  a  contract  when  sued  for  any  act  done  under 
it  Thus,  suppose  a  crop  of  grass  is  sold  by  parole,  and  the  vendee  enters 
upon  the  land  and  cuts  it.  If  an  action  of  trespass  should  be  bi-ought  against 
him,  by  the  vendor,  upon  the  ground  that  the  contract  was  void,  still,  although 
the  contract  is  within  the  statute,  it  would  furnish  n  sufficient  defense,  be- 
cause it  is  executed."     Philbrook  v.  Belknap  (1S:!4)  G  Vt.  3S;i,  3SG. 

"But  it  is  contended  that  there  can  be  no  action  maintained  upon  an  im- 
plied promise,  where  the  subject-matter  is  embraced  in  a  special  contract. 
The  authorities  before  referred  to,  all  shew  that  this  general  principle  applies 
to  cases  where  the  special  contract  is  valid,  and  the  plaintiff  nnght,  if  he  had 
framed  a  special  count  properly,  have  recovered  upon  it.  But  where  the 
plaintiff  brings  his  action  upon  an  implied  promise  and  the  defendant  would 
avoid  It  by  proving  a  special  agreement,  he  must  show  such  an  one  as  would 
be  valid  in  law.  He  cannot  avoid  the  special  agreement  by  bringing  it  within 
the  statute  of  frauds,  and  still  make  use  of  that  agreement  to  defeat  his  im- 
plied promise."  Holbrook  v.  Armstrong  (18.33)  10  Me.  31,  41.  See  to  the  same 
effect  Booker  v.  Wolf  (1902)  195  111.  365,  370,  63  N.  E.  265. 


Sec.  3)  CONTRACT   WITHIN    STATUTE   OF   FRAUDS  313 

showing  tliat  the  plaintiff  had  abandoned  the  contract  for  the  purchase 
of  the  land,  proved  that  the  plaintiff  said  to  one  Dickey,  in  September, 
1837,  that  he  had  no  interest  in  the  land,  and  that  Allen  might  convey 
it  to  whomsoever  he  pleased.  The  defendant  offered  to  prove  that 
shortly  afterwards  Dickey  told  Allen  what  tlie  plaintiff  had  said.  This 
was  ruled  by  the  Judge  to  be  inadmissible,  as  it  did  not  appear  that  the 
plaintiff  wished  the  statement  to  be  made  to  the  defendant.  It  did  not 
appear,  that  the  defendant  gave  the  plaintiff  any  information  of  his 
intention  to  sell  the  land  to  Stubbs,  or  that  the  plaintiff  tendered  mon- 
ey, or  demanded  a  deed.  The  defendant  filed  an  account  in  set-off, 
for  the  use  and  occupation  of  the  farm,  and  offered  at  the  trial  to 
prove  it.  The  Judge  declined  to  receive  the  evidence,  and  directed  the 
account  to  be  laid  out  of  the  case.  The  jury  were  instructed,  that  if 
they  believed  the  admission  and  promise  made  by  the  defendant  to  the 
plaintiff  in  1837  and  1838  to  convey  the  land,  it  would  enable  the  plain- 
tiff to  recover  back  what  he  had  paid  the  defendant  therefor,  although 
a  part  of  the  payment  had  been  made  more  than  six  years  before  the 
date  of  the  writ,  and  notwithstanding  the  original  contract  for  the 
sale  and  purchase  of  the  land  was  not  in  writing.  The  verdict  being 
'for  the  plaintiff,  the  defendant  filed  exceptions. 

Weston,  C.  J.  The  contract  between  the  parties  in  regard  to  the 
farm,  was  one,  which  being  by  parol,  could  not  be  enforced  at  law.  It 
was  however  morally  binding;  and  payments  made  by  the  plaintiff, 
on  account  of  the  purchase,  could  not  be  reclaimed,  so  long  as  the  de- 
fendant was  in  no  fault.  But  if  he,  without  any  justifiable  cause, 
repudiated  the  contract,  and  refused  to  be  bound  by  it,  a  right  of  recla- 
mation would  accrue  to  the  plaintiff,  to  the  extent  required  by  the  prin- 
ciples of  justice  and  equity.  The  statute  of  limitations  would  not 
begin  to  run,  until  the  cause  of  action  accrued. 

The  terms  of  the  contract  do  not  appear  in  evidence;  but  in  the 
spring  of  1837,  the  defendant  recognized  the  contract  as  a  subsisting 
one,  acknowledged  the  payment  of  half  the  amount  of  the  purchase, 
by  bricks  and  a  yoke  of  oxen,  and  promised  in  a  few  days  to  give  the 
plaintiff  or  his  son  a  deed  of  the  farm,  doubtless  upon  being  paid  or 
secured  the  remainder  of  the  purchase  money.  On  the  18th  of  Janu- 
ary following,  he  conveyed  the  farm  to  a  third  person.  This  was 
putting  an  end  to  the  contract,  by  depriving  himself  of  the  power  to 
fulfil  it.  Was  he  justified  in  this  course  by  any  act  or  failure  on  the 
part  of  the  plaintiff?  Nothing  of  this  kind  was  offered  in  proof  by 
the  defendant,  except  the  declarations  made  by  the  plaintiff  to  the 
witness,  Dickey.  That  was  a  casual  conversation,  giving  no  authority 
to  the  witness  to  make  any  communication  to  the  defendant.  The 
plaintiff  cannot  thereby  necessarily  be  understood  to  have  waived  his 
rights.  He  stated,  that  he  had  no  interest  in  the  land,  and  that  the 
defendant  might  convey  it  to  whom  he  pleased.  This  was  true,  if 
understood,  as  it  may  be,  of  legal  interest  on  the  one  hand,  and  of 
legal  power  on  the  other.     The  testimony  of  Dickey  therefore,  if  re- 


314  BENEFITS   UNDER   CONTRACT   PARTIALLY   PERFORMED  (Ch.  3 

ceived,  might  not  conclusively  affect  the  merits  of  the  cause,  or  justify 
the  conveyance  made  by  the  defendant,  without  subjecting  him  to  a 
right  of  reclamation  by  the  plaintiff. 

It  may  be  contended,  that  this  right  could  not  be  exerted,  until  the 
plaintiff  had  first  tendered  to  the  defendant  the  remainder  of  tlie  pur- 
chase money  and  thereupon  demanded  a  deed.  This  may  be  true,  if 
the  defendant  had  not,  by  his  own  act,  deprived  himself  of  the  power 
of  fulfilment.  This  excuses  the  useless  ceremony  of  tender  and  de- 
mand, which  might  otherwise  have  been  essential  to  the  maintenance 
of  the  action,     Newcomb  v.  Brackett,  16  Mass.  161."' 

But  the  plaintiff's  claim  must  be  limited  to  what  is  just  and  equitable, 
under  all  the  circumstances.  He  had  made  some  payments ;  but  he  had 
enjoyed  the  farm  for  eighteen  or  twenty  years.  The  jury  should  have 
been  permitted  to  take  this  into  consideration,  even  without  an  account 
in  offset,  as  it  was  necessarily  connected  with  the  plaintiff's  claim,  and 
was  of  a  character  to  affect  and  qualify  it.°*  This  not  having  been 
done,  we  sustain  the  exceptions,  and  grant  a  new  trial. "^ 

68  Tender  is  not  necessary  in  a  case  where  defendant  has  expressed  his 
intention  not  to  perform  the  oral  contract.  Cook  v.  Doggett  (ISGl)  2  Allen 
(Mass.)  4;]9.  • 

64  Accord:  Ham  v.  Goodrich  (1858)  37  N.  H.  185;  Collins  v.  Thayer  (1874) 
74  111.  1:J8.  In  the  latter  case  the  court  said:  "It  is  unjust  for  appellee  to 
hold  this  land  for  years  under  the  contract,  such  as  it  was,  and  then  escape 
from  paying  for  what  he  has  received  to  his  profit  and  benefit.  And  unless 
evicted  by  paramount  title,  and  [under]  a  liability  to  account  for  the  rents  to 
the  true  owner,  he  is  liable  to  account  to  his  vendors  for  its  use." 

See,  also,  Day  v.  New  Yorlc  Central  Kail  road  Co.,  page  324,  infra. 

65  Accord:  Cook  v.  Doggett  (ISGl)  2  Allen  (Mass.)  430.  ("An  action  for 
money  had  and  received  lies  for  recovering  back  money  paid  by  a  party  to 
an  agreement  which  is  invalid  by  the  statute  of  frauds  and  which  the  other 
party  refuses  to  perform.") 

Effect  of  Such  1'akt  Performance  as  Entitles  Plaintiff  to  Enforce 
Contract  in  I^quity.— Such  partial  performance  of  a  parol  contract  for  the 
conveyance  of  hind  as  will  entitle  plaintiff  to  a  bill  for  specific  performance 
does  not  prevent  plaintiff  from  recovering  at  law  for  the  value  of  the  services 
rendered  by  him  under  such  partial  contract.  "That  one  has  an  adetiuate 
remedy  at  law  may  be  a  reason  why  equity  should  not  hear  his  prayer;  but 
that  he  might  have  claimed  relief  in  eciuity  is  no  reason  why  he  should  not 
have  his  usual  remedy  at  law."  ReynoMs  v.  Reynolds  (1902)  74  Vt.  4G3,  52 
Atl.  1036,  per  Stafford,  J.     Smith  v.  Hatch  (18G5)  46  N.  H.  146. 

In  Smith  v.  Rogers  (1886)  42  Hun  (N.  Y.)  110,  it  was  held  that  money  paid 
under  a  parol  contract  to  purchase  land  might  be  recovered,  even  though  there 
was  sufficient  part  performance  by  plaintiff  to  entitle  him  to  specific  perform- 
ance against  a  grantee  with  notice. 

See,  however,  Cilley  v.  Burkholder  (1879)  41  Mich.  749,  3  N.  W.  221,  and 
Johnson  v.  Puget  Mill  Co.  (1902)  28  Wash.  515,  68  Pac.  867  in  which  cases 
the  court  denied  a  recovery  of  the  purchase  money  to  one  who  had  taken  pos- 
session of  the  premises  and  had  done  such  acts  as  to  entitle  him  to  specific 
performance  in  equity,  as  against  a  defendant  who  was  willing  to  complete 
the  parol  contract. 

Compare  with  these  last  cases  Collier  v.  Coates,  page  341,  infra. 


Sec.  3)  CONTRACT   WITHIN   STATUTE  OF  FRAUDS  315 

GAY  V.  MOONEY. 

(Supreme  Court  of  New  Jersey,  1901.     67  N.  J.  Law,  27,  50  Atl.  596.) 

Error  to  court  of  common  pleas,  Middlesex  county. 

Action  by  Michael  Gay  against  Hugh  Mooney,  administrator  of 
Hugh  Mooney,  deceased.  Judgment  for  plaintiff,  and  defendant 
brings  error. 

Dixon,  J.  The  defendant's  intestate  was  the  uncle  of  the  plaintiff's 
wife,  and  for  several  years  before  his  death  resided  in  the  plaintiff's 
family.  In  the  present  suit  the  plaintiff'  sought  to  recover  compensa- 
tion for  the  board  and  lodging  furnished  to  the  deceased. 

In  order  to  rebut  a  presumption  that  the  service  was  rendered  and 
received  as  a  gratuity,  the  plaintiff  put  in  evidence  tending  to  show  an 
understanding  between  himself  and  the  deceased  that  the  latter  would 
devise  a  certain  dwelling  house  to  the  plaintiff's  children  in  return  for 
what  he  should  receive  as  a  member  of  the  family. 

For  such  a  purpose  this  evidence  was  plainly  legitimate.  It  came 
within  the  rule  laid  down  in  Disbrow  v.  Durand,  54  N.  J.  Law,  343,  24 
Atl.  545,  33  Am.  St.  Rep.  678,  that  in  cases  like  the  present  a  reason- 
able and  proper  expectation  that  there  would  be  compensation  must, 
and  hence  may,  be  shown.  The  bargain  thus  exhibited  is  not  one  on 
which  an  action  at  law  could  be  maintained,  because  it  related  to  land, 
and  was  not  susceptible  of  such  proof  as  the  statute  of  frauds  requires ; 
but  when,  in  pursuance  of  a  bargain  for  this  reason  unenforceable, 
services  have  been  rendered,  the  legal  reme'dy  is  by  an  action  on  the 
quantum  meruit  for  the  value  of  the  services.  McElroy  v.  Ludlum, 
32  N.  J.  Eq.  828.  As  was  said  in  Stone  v.  Todd,  49  N.  J.  Law,  274, 
281,  8  Atl.  300,  the  intended  devise  was  but  the  method  of  paying  an 
admitted  obligation,  and,  if  payment  in  that  manner  be  not  made,  the 
creditor  is  entitled  to  recover  the  value  of  the  services. 

Although  the  bargain  between  the  plaintiff  and  the  intestate  contem- 
plated payment  to  be  made  to  the  plaintiff's  children,  and  not  directly 
to  himself,  yet,  as  that  bargain  did  not  take  the  form  of  an  actionable 
contract,  it  falls  out  of  view  as  a  ground  of  legal  remedy,  and  appears 
only  to  give  color  to  the  conduct  of  the  parties  in  furnishing  and  ac- 
cepting the  service  rendered.  It  affords  the  means  of  determining  that 
the  service  was  not  a  gift,  but  a  sale,  and  out  of  that  determination  the 
law  deduces  a  right  in  him  who  sold  tlie  service  to  be  paid  its  value  by 
him  who  bought  it. 

These  principles  sufficiently  answer  the  important  exceptions  taken 
at  the  trial  and  all  the  exceptions  mentioned  in  the  brief  of  counsel. 
The  other  exceptions,  therefore,  need  not  be  noticed. 

The  judgment  of  the  Middlesex  pleas  is  affirmed. ''• 

»«  Accord:  In  re  Taylor's  Estate  (1907)  132  Wis.  38,  111  N.  W.  229,  122  Am. 
St  Rep.  943  (contains  an  excellent  discussion). 


316      BENEFITS  UNDER  CONTRACT  PARTIALLY  PERFORMED    (Ch.  3 

SMITH  V.  WOODING. 
(Supreme  Court  of  Alabama,  1852.    20  Ala.  324.) 

Error  to  the  Circuit  Court  of  Tallapoosa.  Tried  before  Hon.  E. 
Pickens. 

This  was  an  action  of  assumpsit  by  Wooding  against  Smith,  for  the 
use  and  occupation  of  land.  The  plaintiff  proved  "that  he  sold  the  de- 
fendant a  tract  of  land  by  a  verbal  contract,  and  put  him  in  possession ; 
that  defendant  was  to  pay  him  $500  down,  and  $500  twelve  months 
after,  and  was  to  enter  into  a  written  contract  with  plaintiff  respecting 
the  land,  to  be  drawn  up  by  one  Pickard,  and  that  defendant 
failed  to  pay  plaintiff  according  to  the  contract.  The  defendant 
proved  tliat  he,  together  with  Pickard,  had  made  fifty  dollars  worth 
of  improvements  upon  the  land ;  also,  that  whilst  he  was  in  possession, 
and  had  been  for  about  thirteen  months,  and  after  his  failure  to  pay, 
and  his  refusal  to  let  Pickard  draw  the  writings,  plaintiff  sold  the  land 
to  one  Johnson,  and  brought  an  action  against  defendant  for  unlawful 
detainer,  and  recovered ;  that  defendant  took  the  case  to  the  Circuit 
Court,  where  the  judgment  was  reversed  and  the  case  remanded,  when 
plaintiff  dismissed  his  complaint.  Between  the  sale  to  Johnson  and 
the  dismissal,  defendant  left  the  premises.  This  was  the  substance  of 
the  testimony  in  the  case." 

The  court  charged  the  jury,  that  if  they  found  the  defendant  had 
either  failed  or  refused  to  pay  plaintiff  according  to  contract,  or  re- 
fused to  enter  into  writings  with  plaintiff,  although  the  defendant  was 
still  in  possession  when  the  land  was  sold  to  Johnson,  plaintiff  was  en- 
titled to  recover. 

Verdict  for  the  plaintiff  and  judgment  thereon. 

PhELAn,  J,''^  ♦  *  ♦  q^i-jg  charge  of  the  court  lays  down  the 
broad  proposition,  that  if  defendant  had  either  failed  or  refused  to 
pay  according  to  contract,  or  had  refused  to  enter  into  writings,  that 
plaintiff  was  entitled  to  recover. 

The  defendant  took  possession  of  the  land  under  a  verbal  contract 
to  purchase,  and  a  part  of  this  contract  was,  that  he  should  pay  "$500 
down,  and  $500  twelve  months  after."  The  proof  shows,  that  he  paid 
no  money;  that  he  remained  in  possession  for  more  than  twelve 
months,  and  then  abandoned  the  possession,  before  the  suit  was 
brought.  There  is  no  proof  that  he  failed  or  refused  to  pay  the  money 
because  the  plaintiff  neglected  or  refused,  upon  application,  to  execute 
to  him  a  deed  or  other  written  contract  for  the  purchase  and  sale  of  the 
land,  as  a  condition  to  his  payment  of  the  money.  His  failure  to  pay 
the  money,  then,  was  a  violation  of  his  contract,  from  the  very  day  he 
took  possession,  as  to  the  first  $500,  and  a  further  violation,  after 
twelve  months,  as  to  the  second  $500;  which  made  him  liable  to  the 

B»  The  statement  of  facts  Is  abridged  and  portions  of  tlie  opinion  are  omit- 
ted. 


Sec.  3)  CONTRACT   WITHIN   STATUTE  OF  FRAUDS  337 

plaintiff  at  any  time  for  the  use  and  occupation  of  the  land  for  the 
time  he  occupied  it.  The  contract  being  for  the  sale  of  land,  and  not 
in  writing,  bound  neither  of  the  parties,  under  the  Statute  of  Frauds, 
and  it  was  in  the  power  of  either  to  disregard  it  altogether.  But  if 
the  defendant  was  put  in  the  possession  of  land  under  it,  and  then 
refused  to  comply  .with  the  contract  on  his  part,  without  fault  on  the 
part  of  the  plaintiff,  the  latter  would  be  entitled  to  an  action  for  use 
and  occupation,  to  recover  of  the  defendant  whatever  the  possession  of 
the  land  was  reasonably  worth. 

A  contrary  doctrine  was  held  for  a  time,  under  the  imposing  authori- 
ty of  Lord  Mansfield,  in  the  case  of  Kirtland  v.  Pounsett,  2  Taunton, 
145,  upon  the  construction  of  the  English  statute  giving  the  action  for 
use  and  occupation  of  land,  (11  Geo.  2),  of  which  ours  is  a  copy, 
(Clay's  Dig.  505,  §  1,)  in  which  he  held,  that  to  authorize  that  action, 
the  relation  of  landlord  and  tenant  must  exist,  and  that  when  a  party 
enters  under  a  contract  of  purchase,  the  idea  of  landlord  and  tenant  is 
negatived. 

The  criticism  of  Mr.  Baron  Graham,  in  the  Court  of  Exchequer,  in 
Hull  v.  Vaughan,  6  Price,  157,  upon  that  case,  indicates  the  course  of 
decision  now  generally  adopted,  in  respect  to  the  action  for  use  and 
occupation.  He  says :  "It  is  not  necessary,  in  this  species  of  action, 
that  the  proper  relation  of  landlord  and  tenant  should  be  distinctly 
made  out  between  the  parties,  because  the  action  is  calculated  in  form 
to  meet  cases  where  the  parties  do  not  bear  these  characters,  if  there 
be  in  point  of  fact  an  ownership  on  one  hand  and  an  occupation  on  the 
other ;  and  it  should  be  liberally  applied  where  it  may  be  found  to  be  a 
party's  only  remedy."  See,  on  this  subject,  Davidson  v.  Ernest,  7  Ala. 
817,  and  authorities  there  cited.     *     *     * 

There  is  no  error  in  the  record,  and  the  judgment  is  affirmed."*' 

B 8  Accord:  Gould  v.  Thompson  (1842)  4  Mete.  (Mass.)  224,  in  -which  case 
Shaw,  C.  J.,  characterized  Hull  v.  Vaughan  (1818)  6  Price,  157  (cited  in  the 
principal  case)  as  holding  that  "where  the  relation  of  landlord  and  tenant 
subsisted  by  any  contract,  express  or  implied  by  law,  the  action  for  assumpsit 
for  use  and  occupation  would  lie,  and  that  such  contract  would  be  implied 
from  the  actual  occupation  and  enjoyment  of  the  premises,  by  permission  of 
the  owner,  or  other  person  having  the  power  of  disposal,  when  such  use  and 
occupation  had  been  beneticial." 

Contra :  Smith  v.  Stewart  (1810)  6  Johns.  (N.  Y.)  46,  5  Am.  Dec.  186 ;  Bell 
V.  Ellis'  Heirs  (18.32)  1  Stew.  &  P.  (Ala.)  294.  (Here,  however,  plaintiff  was 
the  one  to  repudiate  the  oral  contract.) 


318  BENEFITS   UNDER   CONTRACT  PARTIALLY   PERFORMED         (Ch.  3 

RAY  V.  YOUNG. 
(Supreme  Court  of  Texas,  1855.     13  Tex.  ,550.) 

Error  from  Goliad.  This  suit  was  brought  to  recover  compensation 
for  damages  incurred  by  the  plaintiff  in  work  and  labor  done  and  per- 
formed by  him  in  the  execution  of  a  verbal  contract  with  the  defend- 
ant's intestate.  The  contract  is  alleged  to  have  been  made  about  the 
1st  of  June,  1852;  that  it  was  agreed  between  defendant's  intestate  and 
plaintiff  that  plaintiff  should  keep  the  stock  of  cattle  of  the  said  intes- 
tate, for  the  term  of  five  years,  for  one-fourth  of  the  increase,  to  be 
appropriated  and  branded  as  plaintiff's  share  at  suitable  times  for 
branding,  generally  from  season  to  season ;  that  plaintiff  should  pre- 
pare a  family  residence  and  suitable  pens  near  the  Escondido,  at  a  place 
agreed  upon  between  the  parties,  as  soon  as  convenient;  and  when 
tlius  prepared,  about  the  1st  of  September,  1852,  plaintiff  should  have 
the  entire  control  of  said  stock  and  the  said  term  of  five  years  should 
commence ;  that  plaintiff  commenced  the  work  of  preparation  and  had 
nearly  completed  it  when  the  defendant's  intestate  died ;  and  that  the 
work  was  completed  before  the  1st  day  of  September,  1852.  Plain- 
tiff alleged  the  breach  of  this  verbal  contract,  and  its  abandonment,  and 
brought  this  suit  to  recover  damages,  by  way  of  compensation,  for  the 
injury  he  had  sustained  in  work  and  labor  in  preparing  to  keep  the 
stock  of  the  defendant's  intestate;  the  presentation  of  the  claim  to  the 
administrator  and  its  rejection  were  averred.  To  this  petition  the  de- 
fendant demurred,  and  the  court  below  sustained  the  demurrer,  from 
which  an  appeal  was  taken. 

Lipscomb,  J.  There  can  be  no  doubt  but  what  the  court  sustained 
the  demurrer  on  the  ground  that,  as  the  contract  was  not  to  be  com- 
pleted before  the  end  of  five  years,  and  it  not  being  in  writing,  it  was 
void  under  the  statute  of  frauds  providing  that  no  action  shall  be 
brought  "upon  any  agreement  which  is  not  to  be  performed  within 
the  space  of  one  year  from  the  making  thereof,  unless  the  promise  or 
agreement  upon  which  such  action  shall  be  brought,  or  some  memo- 
randum thereof,  shall  be  in  writing,  signed  by  the  party  to  be  charged 
therewith."  (Hart.  Dig.  art.  1451.)  If  the  suit  had  been  founded 
upon  the  verbal  contract  set  out  in  the  petition,  and  for  its  specific  per- 
formance, or  damages  for  its  breach,  there  can  be  no  doubt  but  the 
demurrer  would  have  been  well  taken,  and  correctly  sustained  by  the 
court.  But  the  suit  is  not  so  brought.  This  contract  is  only  set  out 
by  way  of  inducement,  and  not  as  the  foundation  of  the  action.  It  is 
contended  that,  induced  by  the  contract,  the  petitioner  had  been  at  the 
expense  of  building  a  residence  and  erecting  pens,  preparatory  to  tak- 
ing charge  of  the  stock  of  the  intestate ;  that  for  such  labor  induced  by 
the  contract  the  defendant's  testator  would  have  been  liable,  whilst 
living,  unless  he  had  given  notice  that  he  would  not  comply  with  the 
contract;  and  his  estate  is  now  liable.     It  would  be  iniquitous  to  rule 


Sec.  3)  CONTRACT   WITHIN   STATUTE   OF   FRAUDS  319 

that  the  plaintiff  had  no  redress  for  injury  and  loss  that  the  defend- 
ant's intestate  had  induced  him  to  incur.  If  the  provision  of  the  stat- 
ute of  frauds  cited  is  to  have  this  effect  instead  of  its  preventing  fraud 
it  will  be  making  it  the  instrument  and  means  of  perpetrating  fraud. 
We  believe  that  the  plaintiff  is  entitled  to  compensation  for  his  labor 
so  bestowed  before  the  death  of  the  defendant's  testator,  and  not  after. 
The  cases  cited  by  the  counsel  for  the  appellee  are  all  of  them  cases  in 
which  a  part  performance  was  sought  to  be  made  the  grounds  of  en- 
forcing the  contract,  and  they  have  no  bearing  upon  tliis  case,  where 
the  contract  is  not  set  up  as  the  foundation  of  the  suit.  The  judgment 
is  reversed  and  the  cause  remanded  to  the  court  below.  Reversed  and 
remanded."' 


MONTAGUE  v.  GARNETT. 

(Court  of  Appeals  of  Kentucky,  1S67.    3  Bush,  297.) 

Williams,  J.  Gamett  leased  Montague  his  farm  for  three  years 
from  January  1,  1861,  until  January  1,  1864,  and,  at  the  same  time, 
verbally  loaned  him  one  hundred  barrels  of  corn  and  three  thousand 
three  hundred  and  sixty  pounds  of  pork,  to  be  returned  at  the  expira- 
tion of  the  lease.  The  corn  and  pork  not  being  returned,  Garnett  sued 
and  recovered  judgment  for  their  value,  from  which  Montague  ap- 
pealed. 

It  is  insisted  that  this  was  a  verbal  contract,  not  to  be  performed 
within  a  year,  and,  therefore,  no  recovery  can  be  had  because  of  tlie 
statute  against  frauds  and  perjuries. 

There  is  evidently  a  distinction  between  contracts  executed  in  part  or 
whole,  and  one  wholly  to  be  executed  by  both  parties,  under  said  stat- 
ute, as  was  said  by  this  court  in  Roberts  v.  Tennell,  3  T.  B.  Mon.  247; 
and,  as  therein  said,  the  statute  does  not  declare  such  contracts  void, 
but  only  that  suit  for  their  enforcement  cannot  be  maintained. 

Where  a  contract  is  wholly  executory  on  both  sides,  as  neither  could 
bring  a  suit  for  its  enforcement,  the  legal  effect  would  be  the  same  as 
though  the  contract  had  been  declared  void ;  but  this  is  not  the  effect 
of  the  statute  where  there  has  been  an  execution  of  the  contract,  in 
part  or  whole,  by  one  party ;  for,  in  such  cases,  the  law  implies  a  con- 
tract to  pay  for  the  consideration  received ;  and  neither  the  letter  nor 
spirit  of  the  statute  prohibits  a  suit  to  recover  on  this  implied  obliga- 
tion of  the  law. 

60  Accord,  on  similar  facts:  Wonsettler  v.  Lee  (1888)  40  Kan.  367,  19  Pac. 
862;  Crenshaw  v.  Bishop  (1911  Tex.  Civ.  App.)  143  S.  W.  284.  In  the  latter 
case  the  court  said :  "The  dealings  between  the  parties  must  be  viewed  from 
the  same  standpoint  as  though  the  contract  alleged  had  never  been  effected. 
In  the  absence  of  such  a  contract,  the  defendant  was  entitled  to  recover  the 
reasonable  value  of  the  feed  and  pasturage  furnished  the  stock  at  the  plain- 
tiff's instance,  and  this  was  the  measure  of  damages  submitted  in  the  court's 
charge." 


320      BENEFITS  UNDER  CONTRACT  PARTIALLY  PERFORMED    (Ch.  3 

If  a  party  borrows  money,  to  be  returned  in  two  years,  whilst  no 
suit  could  be  brought  to  enforce  such  mere  verbal  promise,  yet  a  suit 
to  enforce  the  implied  promise,  created  by  law,  to  return  the  money  on 
the  valuable  consideration,  could  be  maintained.  Nor  would  the  con- 
tract be  without  effect  in  such  case,  for  the  defendant  could  use  it  to 
protect  himself  against  suit  until  the  expiration  of  the  time,  simply  be- 
cause the  statute  has  not  declared  the  contract  void.  He  could  also  use 
it  for  the  purpose  of  reducing  tlie  interest  below  the  legal  rate,  if  such 
had  been  agreed ;  but  he  could  not  use  it  to  prevent  a  recovery  of  the 
valuable  consideration  which  he  had  derived  by  virtue  of  its  terms,  be- 
cause the  statute  was  never  designed  for  such  purposes.  It  was  never 
designed  to  enable  one  man  to  get  the  property  of  another,  by  virtue  of 
a  parol  contract,  and  then  refuse  to  either  execute  the  contract  or  re- 
turn the  property.  Even  in  parol  contracts  for  land,  when  possession 
has  been  delivered,  courts  adjust  the  rents  and  improvements  on  equi- 
table principles,  whilst  tliey  refuse  to  compel  a  specific  execution  of 
the  contract. 

When  the  law  does  not  imply  a  promise  to  return  the  consideration, 
as  for  money  loaned  to  be  bet  at  cards,  &c.,  but  declares  the  contract 
void,  no  suit  could  be  maintained,  when  the  pleadings  show  the  prom- 
ise to  return  is  verbal  and  not  to  be  executed  within  a  year,  because  the 
express  promise  would  conflict  with  the  statute  against  frauds  and 
perjuries,  and  there  would  be  no  implied  promise  by  law  to  sustain  the 
suit.  But  when  the  consideration,  so  far  from  being  illegal  and  vicious, 
is  valuable  and  virtuous,  neither  the  statute  nor  public  policy  forbid  a 
recovery  upon  the  implied  promise,  in  law,  to  return  or  pay  for  it. 

The  instructions  of  the  court,  and  verdict  of  the  jury  and  judgment 
thereon,  being  in  accordance  with  these  views,  the  judgment  is  affirmed 
with  damages.*" 

«o  Accord:  Bethel  y.  Booth  &  Co.  (1903)  115  Ky.  145,  72  S.  W.  803,  24  Ky. 
Law  Rep.  2024.  (Sale  by  plaintiff  to  defendant  of  plaintiff's  business  in  con- 
sideration of  defendant's  oral  promise  to  employ  plaintiff'  for  ten  years.) 

Measure  of  Damages.— In  Faircloth  v.  Kenhiw  (19l'4)  1G5  N.  C.  22S,  81  S. 
E.  299,  defendant  employed  plaintiff  as  his  agent  to  negotiate  for  the  sale  of 
defendant's  land  and  orally  agreed  to  deed  to  plaintiff'  a  certain  number  of 
acres  as  compensation.  Plaintiff  having  earned  such  compensation,  defendant 
refused  to  go  on  with  the  contract,  relying  on  the  statute  of  frauds.  Plaintiff 
sued  to  recover  the  value  of  his  services.  As  to  the  measure  of  damages,  the 
court  said :  "If  plaintiff  were  permitted  to  recover  the  value  of  the  land,  with- 
out regard  to  the  value  of  his  services,  we  would  be  practically  allowing  a 
recovery  for  breach  of  a  contract  void  under  the  statute,  and  this  would  not 
do,  for  the  latter  applies  to  an  action  for  a  breach  as  well  as  to  an  action 
for  an  enforcement  of  the  contract.  We  take  this  to  be  the  true  and  sensible 
rule,  that  in  a  suit  for  work  and  labor  performed,  under  a  contract  void  by 
the  statute  of  frauds,  evidence  of  the  terms  of  the  contract  with  reference  to 
plaintift''s  compensation  is  admissible  to  show  the  value  of  his  services,  as 
agreed  upon  by  the  parties,  but  is  only  evidence,  and  not  controlling  as  matter 
of  law.  It  is  for  the  jury  to  consider  in  making  their  estimate,  and  they  may 
award  such  sum  as  they  may  find,  upon  all  the  evidence,  including  that  drawn 
from  the  contract,  is  a  reasonable  value  of  the  services  (Moore  v.  Capewell 
Horse-Nail  Ck).,  76  Mich.  606,  43  N.  W.  644;  Schanzenbach  v.  Brough. 
58  111.  App.  526) ;    the  inquiry  at  last  being,  What  are  the  services  really 


Sec.  3)  CONTRACT   WITHIN   STATUTE   OF  FRAUDS  321 

HAWLEY  V.  MOODY. 
(Supreme  Court  of  Vermont,  1852.     24  Vt.  603.) 

This  was  an  action  of  assumpsit.  Plea,  the  general  issue,  and  trial 
by  the  court. 

On  trial,  the  plaintiff  gave  evidence  tending  to  prove,  that  on  the 
11th  day  of  July,  1851,  he  contracted  with  the  defendant,  for  a  lease 
of  the  defendant's  tavern  stand  in  Waterbury,  (called  the  Waterbury 
House,)  for  one  year  from  and  after  the  first  day  of  September,  1851, 
for  six  hundred  dollars ;  and  paid  the  defendant  at  the  time  one  hun- 
dred dollars  in  a  gold  watch,  which  defendant  received  as  a  payment 
of  one  hundred  dollars  towards  the  rent.  And  it  was  further  stipulated 
at  the  time,  that  the  parties  should  meet  at  Mr.  Dillingham's  office  as 
soon  as  he  returned  home,  (he  being  absent  that  day,)  and  execute  a 
written  lease.  The  contract  was  all  in  parol.  The  plaintiff  called 
upon  the  defendant  for  the  lease,  and  the  defendant  soon  after,  on  the 
same  day,  tendered  the  watch  back  to  the  plaintiff,  which  the  plaintiff 
refused  to  receive,  and  the  watch  was  afterwards  attached  by  one  of 
the  plaintiff's  creditors,  and  sold  on  execution  against  the  plaintiff. 
The  defendant,  on  the  14th  day  of  July,  1851,  leased  the  same  premises 
to  one  Howard  for  one  year,  and  declined  to  lease  them  to  the  plaintiff. 
The  plaintiff  tendered  to  the  defendant,  on  the  first  day  of  September, 
1851,  five  hundred  dollars  in  specie,  and  demanded  a  lease  of  the  prem- 
ises, according  to  the  contract,  which  defendant  declined.    The  county 

worth?  And  the  contract  price  is  some  evidence  upon  that  question,  It  being 
In  the  nature  of  an  admission  or  declaration  of  the  parties  as  to  the  value,  and 
having  no  more  effect  as  evidence.  It  is  certainly  not  conclusive  upon  the 
jury.     Browne  on  the  Statute  of  Frauds  (5th  Ed.)  §  126." 

See,  also,  Bassett  v.  Bassett  (1867)  55  Me.  127.  (Oral  contract  to  exchange 
land ;  held,  that  the  value  of  the  property  which  defendant  agreed  to  convey 
Is  admissible  as  a  practical  admission  as  to  the  value  of  the  property  conveyed 
by  plaintiff.)  Riilf  v.  Riibe  (190.3)  68  Neb.  543,  94  N.  W.  517,  4  Ann.  Cas.  462. 
Thacher  v.  New  York,  W.  &  B.  Ry.  (1912)  153  App.  Div.  186,  138  N.  Y.  Supp. 
463 ;  Waters  v.  Cline  (190.j)  121  Ky.  611,  85  S.  W.  209,  750,  123  Am.  St.  Rep. 
215.  Contra:  Fuller  v.  Reed  (1869)  38  Cal.  90.  ("To  permit  such  testimony 
for  the  purpose  of  establishing  the  reasonable  value  of  services  rendered 
by  plaintiff,  or  the  measure  of  indebtedness  of  defendant  upon  his  implied 
promise  to  refund  money  advanced  by  plaintiff,  would,  in  effect,  allow  a  party 
in  one  breath  to  disaffirm  a  contract,  and  in  the  next  to  affirm  and  claim 
the  benefit  of  the  same  contract  as  valid  and  subsisting,  and  substantially 
enable  him  to  recover  as  for  breach  of  a  valid  express  contract  in  a  simple 
action  of  assumpsit  upon  an  implied  contract.") 

Compare  Galvin  v.  Prentice  (1871)  45  N.  Y.  162,  6  Am.  Rep.  58. 
It  is  sometimes  said  that  plaintiff's  recovery  on  the  common  counts  should 
never  be  in  excess  of  the  contract  rate.     King  v.  Brown  (1842)  2  Hill  (N.  Y.) 
485.     But  see  Cozad  v.  Elam  (190.5)  115  Mo.  App.  1.36,  91  S.  W.  434. 

Some  few  jurisdictions  seem  to  allow  a  recovery  on  the  contract  for  services 
actually  rendered  in  which  event  the  contract  rate  is,  of  course,  controlling. 
Fuller  V.  Rice  (1884)  52  Mich.  435,  18  N.  W.  204 ;  Spinney  v.  Hill  (1900)  81 
Miini.  310,  84  N.  W.  116  (court  concedes  that  this  doctrine  is  based  on  unsat- 
isfactory reasoning).  See  also,  Sears  v.  Ohler  (1911)  144  Ky.  473,  139  S.  \V. 
759. 

TuuRS. Quasi  Cont. — 21 


322  BENEFITS   UNDER   CONTRACT   PARTIALLY   PERFORMED  (Ch.  3 

court,  March  term,  in  Washington  county,  1852,  Poland,  J.,  presiding, 
adjudged  that  plaintiff  could  not  recover,  and  rendered  judgment  for 
defendant.     Exceptions  by  plaintiff. 

RedfiEld,  J.  1.  The  statute  of  frauds  in  this  State,  contains  no 
exception  of  leases,  or  contracts  for  leases  in  futuro,  as  is  found  in 
the  English  statute,  and  in  some  of  the  other  States.  This  case  falls, 
therefore,  within  the  statute. 

2.  Part  performance  has  not  been  regarded  as  any  ground  of  relief 
at  law;  and  it  has  not  been  considered  that  part  payment  merely 
amounted  to  such  part  performance,  as  to  entitle  the  party  to  enforce 
the  contract  in  equity  even,  or  not  generally. 

3.  The  only  question  then  is  in  regard  to  the  part  payment.  It  seems 
to  be  well  settled,  that  the  party  repudiating  the  contract  cannot  re- 
cover for  part  payment  under  it  ever,  but  that  the  other  party  may. 
Shaw  V.  Shaw,  6  Vt.  69. 

To  this  extent,  the  counsel  seem  to  understand  the  law  alike,  and 
that  would  settle  the  rights  of  the  parties  sufficiently,  were  it  not  that 
they  seem  to  stand  upon  ceremony  as  to  the  mode,  whether  tlie  party 
making  the  payment  in  a  specific  thing,  is  bound  to  take  back  the  same 
thing,  when  the  contract  is  repudiated  by  the  other  party. 

There  can  be  no  doubt  the  property  passed  by  the  sale  and  delivery 
to  the  defendant,  the  only  question  is  as  to  the  effect  of  defendant's 
refusal  to  fulfil  the  contract.  If  the  contract  could  be  regarded  as 
originally  void,  like  a  Sunday  contract,  then  no  property  would  pass, 
until  a  reaffirmance  on  some  other  day. 

But  here  the  contract  is  not  void,  as  was  expressly  held  by  this  court 
in  Philbrook  v.  Belknap,  6  Vt.  383. 

It  has  always  been  so  held,  whenever  the  question  has  arisen,  not- 
withstanding the  elementary  writers,  in  a  loose  way,  often  speak  of 
this  class  of  contracts  as  void,  meaning  thereby  contracts  upon  which 
no  action  will  lie.  That  is  all  the  statute  provides,  "That  no  suit  in 
law  or  equity  shall  be  maintained  upon  them."  But  to  all  intents  they 
are  contracts,  and  perfectly  valid  for  all  purposes  except  actions,  so 
long  as  they  are  acted  under.  There  can  be  no  doubt  the  property  in 
this  watch  passed  to  defendant,  and  might  have  been  sold  by  him,  or 
legally  attached  upon  his  debts. 

4.  The  only  remaining  inquiry  then,  is  as  to  the  effect  upon  the  title 
of  the  watch,  of  defendant's  refusal  to  complete  the  contract.  If  this 
were  to  be  regarded  like  the  case  where  one  is  induced  to  purchase 
property,  by  fraudulent  representations,  and  where,  upon  the  discov- 
ery of  such  facts,  he  elects  to  rescind  the  contract,  as  he  may,  then  the 
property  would  revest.  But  here  is  no  fraud  in  the  contract,  neither 
is  it  the  object  of  the  statute  to  attach  to  this  class  of  contracts  any 
mark  of  reproach. 

The  contract  is  innocent  enough,  if  each  party  chooses  to  trust  to 
the  honor  of  the  other  party  as  to  its  performance.    If  that  were  not 


Sec.  3)  CONTRACT   WITHIN  STATUTE   OF   FRAUDS  328 

SO,  one  could  not  recover  for  payments  made  under  it.  The  contract 
is  not  void,  or  affected  with  any  taint  or  turpitude,  nor  is  it  rescindable 
at  the  election  of  either  party. 

Either  party,  if  he  choose,  may  repudiate  it,  but  that  only  operates 
upon  so  much  of  the  contract  as  remains  executory  at  the  time,  and 
does  not  repeal  any  thing  done  under  it.  For  these  purposes  it  remains 
in  full  force.  And  the  party  repudiating  must  be  content  to  lose  what 
he  has  done  under  it,  as  the  contract  remaining  in  force,  the  other 
party  may  defend  under  it. 

But  if  the  party  repudiating  the  future  performance  has  himself  re- 
ceived advances  which  he  declines  to  pay  for  in  the  mode  stipulated, 
it  is  regarded  as  equitable  that  he  should  refund  in  the  usual  mode  for 
money  had  and  for  goods  sold,  and  it  is  not  in  his  power  without  the 
consent  of  the  other  party,  to  revest  the  title  of  the  specific  things  re- 
ceived. 

This  seems  to  us  the  only  view  consistent  with  general  principles 
applicable  to  the  subject,  or  with  the  decided  cases,  and  manifestly 
just  and  equitable.  If  the  party  has  bought  goods  which  he  declines  to 
pay  for  in  the  mode  stipulated,  and  which,  but  for  his  own  act  he  might 
do,  he  ought  and  he  must  be  content  to  pay  in  the  usual  mode  of  pay- 
ing for  goods  sold  and  delivered,  and  this  recovery  may  be  had  under 
the  general  counts.    Gray  v.  Hill,  R.  &  M.  420;  Chit,  on  Con.  305. 

As  the  former  cases  upon  this  subject  have  adopted  no  principle  at 
all  analogous  to  allowing  either  party  the  power  of  rescission  of  the 
contract,  we  feel  reluctant  to  push  ourselves  upon  an  unexplored  field, 
without  some  obvious  and  pressing  necessity,  in  order  to  warp  justice, 
which  we  think  is  not  this  case. 

By  the  adoption  of  this  new  feature,  even  if  it  were  more  consonant 
with  justice  in  the  particular  case,  which  we  think  it  clearly  is  not,  we 
should  be  fearful  of  ultimately  encountering  evils  which  are  not  ap- 
parent, at  the  moment.  And  there  are  some  which  we  could  easily 
foresee  might  arise.  The  specific  things  received  in  payment,  might 
have  been  more  or  less  put  to  use  by  the  party  receiving  them,  for 
which  he  ought  to  be  accountable. 

They  might  have  been  sold  and  transferred  in  different  modes,  and 
thus  new  rights  and  interests  intervene.  And  if  we  adopt  the  principle 
of  recision,  we  do  not  see,  but  in  principle  it  will  cut  off  by  the  roots, 
all  rights  accrued  under  the  contract  before  repudiation,  which  would 
certainly  be  unjust  to  the  innocent  party. 

And  as  the  repudiating  party  is  always  clearly  in  the  wrong,  it  can 
be  no  hardship  upon  him,  to  pay  in  currency  for  what  he  has  received 
in  advance  upon  the  contract. 

If  one  party  has  the  power  of  recision,  then  the  otlier,  and  especially 
the  innocent  party,  should  have  the  power.  The  result  of  which  must 
be,  that  however  many  times  the  property  has  changed  hands,  or  un- 
der whatever  circumstances  the  innocent  party  may  pursue  it  and 


324      BENEFITS  UNDER  CONTRACT  PARTIALLY  PERFORMED    (Cll.  3 

recover  of  the  last  proprietor,  if  not  of  each  intervening  one,  which 
would  often  be  attended  with  serious  embarrassment  and  probable 
wrong-. 
Judgment  reversed  and  case  remanded  for  new  trial.'* 


DAY  V.  NEW  YORK  CENTRAL  R.  CO. 

(Commission  of  Appeals  of  New  York,  1873.    51  N.  Y.  5S3.) 

The  complaint  alleged  in  substance  that  in  May,  1855,  the  plaintiff 
agreed  to  convey  to  the  defendant  about  an  acre  and  two  thirds  of 
land,  and  to  build  thereon  and  keep  in  repair  cattle  yards  and  pens  for 
live  stock  sufficient  to  accommodate  temporarily  tlie  keeping  and  feed- 
ing of  all  cattle,  swine  and  live  stock  which  should  be  transported  on 
the  defendant's  road  and  in  consideration  thereof  that  the  defendant 
agreed  to  deliver  to  the  plaintiff  from  that  time  forward,  for  tem- 
porary feeding  and  keeping,  such  stock  as  should  be  transported  on 
its  road  eastward  from  the  Niagara  river,  the  profits  of  such  keeping 
and  feeding  to  be  realized  by  the  plaintiff ;  that  pursuant  to  this  agree- 
ment (which  was  not  in  writing)  the  plaintiff  conveyed  the  land  in  ques- 
tion to  defendant  and  constructed  the  necessary  cattle  yards,  pens  and 
other  conveniences  for  doing  business  contemplated  by  the  agreement ; 
that  the  defendant  performed  for  a  year,  and  then  disregarded  the 
agreement  and  refused  to  allow  the  live  stock  transported  on  its  road 
to  be  delivered  temporarily  to  the  plaintiff  for  feeding  and  keeping  and 
refused  to  allow  the  plaintiff  the  enjoyment  of  the  profits  he  would 
have  realized  by  keeping  and  feeding  such  stock.  The  answer  was  a 
general  denial.  After  a  verdict  for  plaintiff  and  a  reversal  by  the 
General  Term  on  the  ground  that  the  agreement  was  void  by  the 
Statute  of  Frauds,  the  plaintiff  amended  his  complaint  by  adding  a 

«i  Accord:    Boolier  v.  Wolf  (1902)  195  111.  3G5,  63  N.  E.  265. 

Contra  :    Duncan  v.  Baird  &  Co.  (IhLiU)  8  Dana  (38  Ky.)  102. 

Differing  views  as  to  the  soundness  of  this  doctrine  are  found  in  Keener, 
Quasi  Contracts,  285  to  288,  and  Woodward,  Quasi  Contracts,  §  96. 

Necessity  of  Restitution  of  Property  Received  by  Plaintiff. — In 
Todd  V.  Bettingen  (1910)  109  Minn.  493,  121  N.  W.  413.  the  plaintiff,  pur- 
suant to  an  oral  agreement,  delivered  to  the  defendant  shares  of  stock 
of  the  value  of  $31,500.  The  defendant  delivered  to  the  plaintiff  shares  of 
stock  in  another  company  of  the  value  of  $11,000,  hut  failed  and  refused  to 
convey  to  the  plaintiff"  a  tract  of  land  he  had  agreed  to  transfer  to  the  plain- 
tiff. The  contract  was  void  under  the  statute  of  frauds.  The  plaintiff  pray- 
ed for  judgment  for  $20,500.  The  court,  holding  that  the  complaint  was  de- 
fective in  that  it  did  not  allege  a  tender  of  the  shares  back  to  the  defendant, 
said :  "The  plaintiff  must  accoixiingly  allege  return  or  tender  or  set  forth  a 
set  of  facts  which  would  excuse  its  absence.  Any  other  view  would  involve 
a  practical  repeal  of  the  part  of  the  statute  of  frauds  applicable.  A  plaintiff 
presumptively  able  to  make  a  restitution  could  otherwise  retain  what  defend- 
ant had  delivered  to  him  and  sue  for  value  of  what  defendant  had  failed  to 
deliver  him.  This  would  amount  to  the  enforcement  of  the  contract  fis  valid 
notwithstanding  the  statute.  The  law  does  not  permit  the  injured  man  to 
thus  indirectly  enforce  a  contract  which  he  could  not  enforce  directly." 


Sec.  3)  CONTRACT   WITHIN   STATUTE   OF   FRAUDS  325 

second  cause  of  action  in  assumpsit  for  land  sold  and  conveyed,  work 
and  labor,  and  for  materials  furnished,  etc.  The  plaintiff  again  went 
to  trial  and  recovered  as  damages  the  value  of  the  land  conveyed  to 
the  defendant  with  interest.     The  defendant  appealed. 

Earl,  C.®-  The  point  was  not  taken  by  the  defendant  at  any  stage 
of  the  trial,  that  the  plaintiff  had  not  given  sufficient  proof  tending  to 
establish  the  parol  agreement  claimed  by  him,  to- wit :  That  in  consid- 
eration of  the  conveyance  of  the  land  to  the  defendant,  it  was  to  give 
to  the  plaintiff  at  his  yards  and  pens  the  business  of  temporarily  keep- 
ing and  feeding  all  the  stock  which  should  be  transported  upon  its 
road  eastward  from  Niagara  river.  Hence  we  must  assume,  for  the 
purposes  of  the  appeal,  that  the  parol  agreement,  as  testified  to  by  the 
plaintiff,  was  established.  We  must  also  assume  that  this  agreement 
was  void  under  the  statute  of  frauds,  for  such  is  the  claim  on  the  part 
of  the  defendant,  and  it  was  upon  this  theory  alone  that  the  recovery 
was  based,  and  upon  it  alone  the  plaintiff"  seeks  to  uphold  the  judg- 
ment. As  the  consideration  for  the  plaintiff's  land,  the  defendant 
agreed  to  pay  him  $1  and  to  give  him  the  stock  business  at  his  yards. 
It  paid  him  the  $1  and  gave  him  all  the  business  for  the  year  1855  and 
part  of  it  for  the  year  1856,  and  out  of  this  business  the  plaintiff'  made 
profits  to  the  amount  of  about  $6,000.  And  yet  he  brings  this  action 
to  recover  the  entire  value  of  the  land  conveyed  by  him  on  the  ground 
of  a  total  failure  of  the  consideration  of  his  conveyance.  A  mere 
statement  of  the  case  shows  that  the  action  must  be  without  foundation. 

If  one  pays  money,  or  renders  service,  or  delivers  property  upon  an 
agreement  condemned  by  the  statute  of  frauds,  he  may  recover  the 
money  paid  in  an  action  for  money  had  and  received,  and  he  may  re- 
cover the  value  of  his  services  and  of  his  property  upon  an  implied  as- 
sumpsit to  pay,  provided  he  can  show  that  he  has  been  ready  and  will- 
ing to  perform  the  agreement,  and  the  other  party  has  repudiated  or 
refused  to  perform  it.  Gillet  v.  Maynard,  5  Johns.  85,  4  Am.  Dec. 
329;  King  v.  Brown,  2  Hill,  485;  Cook  v.  Doggett,  2  Allen  (Mass.) 
439;  Erben  v.  Lorillard,  19  N.  Y.  299;  Richards  v.  Allen,  17  Me.  296. 

While  the  law  in  such  case  will  not  sustain  an  action  based  upon  the 
agreement,  it  still  recognizes  its  existence  and  treats  it  as  morally  bind- 
ing, and  for  that  reason  will  not  give  relief  against  a  party  not  in  de- 
fault, nor  in  favor  of  a  party  who  is  in  default  in  his  performance  of 
the  agreement. 

A  party  who  has  received  any  thing  under  such  an  agreement,  and 
then  has  refused  to  perform  it,  ought  in  justice  to  pay  for  what  he 
has  received,  and  hence  the  law  for  the  purpose  of  doing  justice  to  the 
other  party  will  imply  an  assumpsit. 

An  assumpsit  is  never  implied  except  where  the  justice  and  equity 
of  the  case  demand  it.  A  party  entering  into  an  agreement,  invalid 
under  the  statute  of  frauds,  is  charged  with  knowledge  that  he  cannot 

««  The  statement  of  facts  is  abridged. 


326  BENEFITS   UNDER   CONTRACT   PARTIALLY   PERFORMED  (Ch.  3 

enforce  his  agreement,  and  if  he,  not  being  in  default,  has  received  part 
of  the  consideration  of  his  agreement,  upon  what  principle  of  justice 
or  equity  will  the  law  imply  an  assumpsit  on  the  part  of  the  party  in 
default  still  to  pay  the  entire  consideration?  Yet  such  an  assumpsit 
has  been  enforced  in  this  case. 

Suppose  one  agree  by  parol  to  work  for  another  for  ten  years  for 
the  consideration  of  $500,  to  be  paid  at  the  end  of  that  time,  and  also 
a  piece  of  land  to  be  conveyed  to  him,  and  at  the  end  of  the  time,  the 
$500  be  paid  and  the  conveyance  of  the  land  refused,  can  he,  upon  an 
implied  assumpsit,  recover  the  entire  value  of  his  services?  If  he  has 
received  no  part  of  the  consideration  agreed  to  be  paid  to  him,  the  law 
will  imply  a  promise  to  pay  him  what  his  services  are  worth,  and  will 
enforce  such  promise.  But  what  shall  be  done  when  he  has  re- 
ceived part  of  the  consideration?  He  should  not  be  left  without  any 
remedy  for  the  balance  honestly  due  him,  but  upon  the  same  principles 
of  justice  and  equity  the  law  should  imply  a  promise  to  pay  the  balance. 

Here  the  plaintiff  was  to  receive  for  his  land  $1  and  the  stock  busi- 
ness at  his  yards.  The  $1  may  be  regarded  as  merely  nominal,  and 
the  other  must  be  held  to  be  the  substantial  consideration.  The  plain- 
tiff expected  to  get  the  value  of  his  land  in  the  profits  which  he  should 
make  out  of  the  business  which  the  defendant  should  give  him.  This 
business  the  defendant  gave  to  the  plaintiff  for  one  year,  at  least,  just 
as  it  agreed  to,  and  out  of  it  the  plaintiff  appears  to  have  made  profits 
much  greater  than  the  value  of  the  land  conveyed.  These  profits  were 
the  very  consideration  contemplated  by  the  parties  for  the  conveyance 
of  the  land,  and  to  the  extent  that  the  plaintiff  has  had  the  business 
and  profits,  he  has  had  the  very  consideration  he  contracted  for.  Sup- 
pose the  defendant  had  agreed  to  pay  plaintiff  $100  and  also  to  give 
him  the  stock  business,  could  the  plaintiff  in  this  action  after  receiving 
the  $100  recover  the  whole  value  of  the  land,  entirely  ignoring  the 
money  payment?  Suppose,  instead  of  giving  the  defendant  land,  the 
plaintiff  had  paid  it  money  for  the  same  consideration,  could  he  under 
the  circumstances  of  this  case,  recover  back  all  the  money  paid  in  an 
action  for  money  had  and  received?  Clearly  not.  The  very  basis 
upon  which  the  action  rests  forbids  it.  As  said  by  Lord  Mansfield  in 
Moses  v.  McFerlan,  2  Burr.  1005,  "if  the  defendant  be  under  an  obli- 
gation from  the  ties  of  natural  justice  to  refund,  the  law  implies  a  debt 
and  gives  this  action  founded  in  the  equity  of  the  plaintiff's  case." 
And  he  says  the  action  "is  equally  beneficial  to  the  defendant.  It  is  the 
most  favorable  way  in  which  he  can  be  sued ;  he  can  be  liable  no  fur- 
ther than  the  money  he  has  received;  and  against  that  may  go  into 
every  equitable  defense  upon  the  general  issue ;  he  may  claim  every 
equitable  allowance;  he  may  prove  a  release  without  pleading  it;  in 
short,  he  may  defend  himself  by  every  thing  which  shows  that  the 
plaintiff,  ex  aequo  et  bono,  is  not  entitled  to  the  whole  of  his  demand 
or  to  any  part  of  it."  And  in  Longchamp  v.  Kinny,  1  Douglas,  137,  the 
same  learned  judge  says:    "Great  benefit  arises  from  a  liberal  exten- 


Sec.  3)  CONTRACT   WITHIN   STATUTE   OF   FRAUDS  327 

sion  of  the  action  for  money  had  and  received,  because  the  charge  and 
defense  in  this  kind  of  action  are  both  governed  by  the  true  equity 
and  conscience  of  the  case." 

It  w^ould  be  against  both  equity  and  good  conscience  to  allow  the 
plaintiff  in  the  case  supposed  to  recover  all  the  consideration  vVhich  he 
had  paid  when  he  had  already  received  a  part  of  the  benefit  and  con- 
sideration which  he  had  contracted  for.  Within  the  principles  laid 
down  in  the  cases  cited  he  would  be  permitted  to  recover  the  balance 
only  of  the  money  paid  by  him  after  deducting  the  value  of  so  much 
of  the  consideration  as  he  had  received,  and  if  it  could  be  shown  in 
such  case  by  the  defendant  that  plaintiff  had  actually  received  from 
the  defendant  upon  the  agreement  more  than  he  had  paid  there  would 
be  no  basis  of  law  or  equity  for  the  action  to  stand  on.  The  same 
principles  of  justice  and  equity  should  be  applied  to  this  case.  The 
plaintiff's  equities  can  be  no  greater  that  he  paid  in  land  rather  than  in 
money.  The  agreement  cannot  be  enforced.  Neither  party  can  in 
this  action  be  allowed  any  benefit  from  it  or  any  damage  for  its  breach. 
The  defendant  having  repudiated  the  agreement  the  plaintiff  can  re- 
cover for  his  land  as  if  there  had  been  no  agreement  as  to  the  amount 
of  the  consideration,  but  he  must  allow  so  much  of  the  consideration 
as  has  been  paid;  and  if  he  has  received  more  in  the  profits  of  the 
business  which  the  defendant  brought  to  him  under  the  agreement 
than  the  value  of  his  land,  he  can  recover  nothing.  If  the  profits  are 
less  than  the  value  of  the  land,  then  he  can  recover  the  balance. 

It  was  not  necessary  for  the  plaintiff  to  tender  the  profits  to  the 
defendant  before  the  commencement  of  the  action.  They  were  part  of 
the  consideration  received  by  him  for  his  conveyance,  and  he  has  the 
same  right  to  hold  them  as  if  so  much  money  had  been  paid  to  him  by 
the  defendant.  His  claim  is  against  the  defendant  for  the  balance,  if 
any,  of  the  value  of  the  land.  These  views  are  fully  supported  by 
well-recognized  principles  of  law.  I  find  no  authority  in  conflict  with 
them,  and  the  case  of  Richards  v.  Allen,  17  Me.  296,  is  the  only  au- 
thority which  has  come  to  my  notice  directly  in  point.  In  that  case 
there  was  a  verbal  contract  between  the  plaintiff'  and  defendant  for 
the  purchase  and  sale  of  a  farm,  and  the  plaintiff  had  delivered  to 
the  defendant  upon  the  contract  a  quantity  of  brick  and  a  yoke  of 
oxen.  After  the  plaintiff  had  been  in  possession  of  the  farm  for  about 
twenty  years  the  defendant  conveyed  it  to  another  person,  and  refused 
to  convey  to  the  plaintiff.  He  then  sued  the  defendant  in  assumpsit 
for  the  value  of  the  brick  and  oxen,  and  it  was  held  that  he  could  re- 
cover, but  that  he  must  allow  for  the  use  of  the  land.  The  court  says : 
"But  the  plaintiff's  claim  must  be  limited  to  what  is  just  and  equitable 
under  all  the  circumstances.  He  had  made  some  payments,  but  he  had 
enjoyed  the  farm  for  eighteen  or  twenty  years.  The  jury  should  have 
been  permitted  to  take  this  into  consideration  even  without  an  account 
in  offset,  as  it  was  necessarily  connected  with  the  plaintiff's  claim,  and 
was  of  a  character  to  affect  and  qualify  it." 


328  BENEFITS   UNDER  CONTRACT   PARTIALLY  PERFORMED         (Ch.  3 

My  conclusion  therefore  is  that  the  judgment  should  be  reversed 
and  a  new  trial  granted,  costs  to  abide  event.  All  concur  except  John- 
son, C,  not  sitting. 

Judgment  reversed. 


DOWLING  V.  McKENNEY. 
(Supreme  Judicial  Court  of  Massachusetts,  1878.     124  Mass.  478.) 

Contract.  The  declaration  contained  three  counts.  The  first  was 
to  recover  $200,  on  an  account  annexed,  for  "furnishing  materials  for, 
and  labor  and  work  in  making,  a  monument."  The  second  was  as 
follows :  "And  the  plaintiff  says  that  he  made  an  agreement  with  the 
defendant  to  furnish  materials  and  construct  for  her  a  monument  for 
the  sum  of  two  hundred  dollars ;  that  he  furnished  materials  and  made 
said  monument  for  the  defendant,  and  tendered  the  same  to  the  de- 
fendant; and  that  she  owes  him  therefor  the  sum  of  two  hundred  dol- 
lars." The  third  was  on  an  account  annexed,  and  contained  the  fol- 
lowing items :  "To  ten  days'  labor  on  monument,  $50.  To  three  days' 
services  in  preparing  land  and  foundation  for  same,  $15."  Answer, 
a  general  denial. 

At  the  trial  in  the  Superior  Court,  before  Dewey,  J.,  the  plaintiff 
testified  that  he  was  a  manufacturer  of  monuments  and  gravestones, 
keeping  on  hand  stock  and  partly  finished  monuments,  to  be  finished 
to  order;  that  the  defendant  came  to  his  shop  and  said  she  would  like 
to  get  a  monument;  that  he  showed  her  several  monuments  partially 
manufactured,  among  them  the  one  in  question,  the  price  of  which  he 
told  her  was  $250,  when  finished  with  base,  cap  and  plinth,  and  polish- 
ed; that  she  said  she  had  some  land,  and  he  said  perhaps  they  might 
trade  with  the  piece  of  land;  that  if  he  could  get  a  piece  of  land  at  a 
reasonable  price  he  might  trade  with  her;  that  if  she  would  sell  the 
land  at  the  same  price  for  which  she  had  sold  another  piece,  he  would 
trade  with  her  for  the  monument;  that  they  went  on  the  land  and 
looked  at  the  lots,  for  one  of  which  she  asked  $435 ;  that  he  told  her 
he  would  throw  off  $50  on  the  monument,  calling  it  $200  complete,  if 
she  would  throw  $35  off  on  the  lot,  and  would  give  her  $100  cash,  and 
$100  later,  and  the  monument  completed  with  the  inscription,  for  the 
lot  of  land ;  and  that  to  tliis  proposition  she  agreed,  and  the  lot  was 
selected  and  agreed  on. 

There  was  also  evidence  that  subsequently  the  plaintiff  purchased 
a  plinth,  and  one  of  his  workmen  worked  three  or  four  days,  fitting 
and  polishing  the  monument,  putting  on  the  cap  and  mouldings,  and 
one  third  of  the  inscription,  which  the  defendant  had  given  him  to  be 
put  on  the  monument,  at  the  time  of  the  original  contract,  was  put  on. 
taking  three  days'  work;  that  the  defendant  then  notified  the  plaintiff 
that  she  would  not  take  the  monument,  as  she  had  been  advised  it  was 
too  large,  and  refused  thereafter  to  take  it;  that  subsequently  the 


Sec.  3)  CONTRACT   WITHIN   STATUTE   OF   FRAUDS  329 

plaintiff  completed  the  monument  and  inscription,  and  offered  to  de- 
liver it  to  her,  and  pay  her  $100  cash  and  give  her  his  note  for  $100 
secured  by  mortgage  on  the  land,  and  demanded  a  deed  of  the  land ; 
that  she  refused  to  accept  the  monument,  money  and  note,  and  refused 
to  deliver  him  a  deed  of  the  land. 

Upon  this  evidence,  the  plaintiff  contended  that  he  had  the  right 
to  recover  the  sum  of  $200,  for  furnishing  materials  and  completing 
the  monument,  and  that  if  he  could  not  recover  for  the  materials  or  the 
monument,  he  had  a  right  to  recover  for  his  labor  in  completing  the 
monument.  The  defendant  contended  that  the  Gen.  St.  1860,  c.  105, 
§  1,  cl.  4,  and  section  5,  were  a  bar  to  the  action.  The  judge,  by  con- 
sent of  parties,  before  verdict,  reported  the  case  for  the  determination 
of  this  court.  If,  on  this  evidence,  the  action  could  not  be  maintained, 
judgment  was  to  be  entered  for  the  defendant;  otherwise,  the  case  to 
stand  for  trial. 

Endicott,  J.  It  appears  from  the  report  that  the  defendant  orally 
agreed  to  convey  to  the  plaintiff  a  lot  of  land  valued  at  $400,  and  to 
take,  in  exchange  or  pa3£ment  therefor,  a  monument,  estimated  to  be  of 
the  value  of  $200,  when  completed,  and  the  balance  in  money.  After 
the  monument  was  finished,  the  plaintiff  tendered  it  to  the  defendant, 
together  with  the  balance  in  money,  according  to  the  contract.  The 
defendant  refused  to  accept  the  monument  or  money,  or  to  give  the 
deed. 

Whether  this  was  a  sale  or  an  exchange  of  property  is  immaterial. 
Assuming  that  it  was  an  exchange  of  the  land  for  the  monument,  with 
a  balance  in  money  to  be  paid  by  the  plaintiff,  it  is  to  be  governed  by 
the  same  rules  as  apply  to  a  sale  when  the  whole  consideration  is  to 
be  paid  in  money.  Anon.,  3  Salk.  157;  Commonwealth  v.  Clark,  14 
Gray,  367,  372;  Howard  v.  Harris,  8  Allen,  297.  The  contract  was 
therefore  within  the  prohibition  of  the  statute  of  frauds.  Gen.  St. 
1860,  c.  105,  §  1,  cl.  4.  The  oral  promise  on  the  part  of  the  defendant 
was  not  to  pay  money  for  the  monument,  but  to  convey  a  lot  of  land. 
If  the  promise  had  been  to  pay  in  money  for  the  monument,  when  com- 
pleted, it  might  have  come  within  the  rule,  that  an  agreement  to  con- 
struct or  build  an  article  to  be  paid  for  when  finished  need  not  be 
proved  by  a  memoradum  in  writing,  as  in  Mixer  v.  Howarth,  21  Pick. 
205,  32  Am.  Dec.  256.  But  that  view  of  the  case  cannot  be  sustained 
on  the  evidence  as  reported ;  it  does  not  appear  to  have  been  the  inten- 
tion of  the  parties  to  make  any  contract,  except  that  which  included 
the  conveyance  of  the  land,  which  was  the  sole  consideration  moving 
from  the  defendant.  That  contract  was  not  in  writing,  and  cannot 
be  enforced,  in  whole  or  in  part.  The  plaintiff  cannot  separate  that 
portion  which  relates  to  the  building  of  the  monument  from  the  whole, 
and  recover  upon  it  as  a  distinct  undertaking.  This  would  be  to  make 
a  new  contract  between  the  parties ;  for  it  was  no  part  of  the  agree- 
ment, as  stated,  to  pay  $200  in  money  for  the  monument,  but  to  allow 
that  sum  as  a  .portion  of  the  consideration  for  the  conveyance  of  the 


330  BENEFITS  UNDER  CONTRACT  PARTIALLY   PERFORMED         (Ch.  3 

land.  The  plaintiff  therefore  cannot  recover,  either  upon  his  first  or 
second  count,  for  the  value  of  the  monument. 

But  the  plaintiff  contends  that  he  may,  under  his  third  count,  re- 
cover for  his  labor  in  completing  the  monument.  It  is  true,  that  when 
a  person  pays  money,  or  renders  service,  or  makes  a  conveyance,  un- 
der an  agreement  within  the  prohibition  of  the  statute  of  frauds,  and 
the  other  party  refuses  to  perform  it,  an  action  will  lie  to  recover  the 
money  so  paid,  or  the  value  of  the  services  rendered  or  the  property 
conveyed ;  but  it  is  on  the  ground  that  a  party  who  has  received  a  bene- 
fit, under  an  agreement  which  he  has  repudiated,  shall  be  held  to  pay, 
upon  an  implied  assumpsit,  for  that  which  he  has  received.  Dix  v. 
Marcy,  116  Mass.  416,  and  cases  cited.  In  the  case  at  bar,  the  defend- 
ant received  no  benefit  from  the  labor  performed  in  completing  the 
monument,  although  the  plaintiff  may  have  suffered  a  loss  because  he 
is  unable  to  enforce  his  contract,  and  no  recovery  can  be  had  for  the 
labor  on  the  monument,  as  charged  in  the  account  annexed  to  the  third 
count. 

But  this  rule  does  not  apply  to  the  item  for  services  performed  by 
the  plaintiff  in  preparing  the  land  and  foundation.  If  this  refers  to  the 
lot  of  the  defendant  where  the  monument  was  to  stand,  and  the  work 
was  done  upon  it,  we  cannot  say  as  matter  of  law  that  it  was  not  of 
benefit  to  the  defendant.  That  is  a  question  of  fact  to  be  determined, 
and,  by  the  terms  of  the  report,  the  entry  must  be :  Case  to  stand  for 
trial." 

63  In  Boone  v.  Coe  (1913)  153  Ky.  233,  154  S.  W.  900,  51  L.  R.  A.  (N.  S.)  907, 
defeudnnt  by  a  verbal  contract  leased  to  plaintiffs  a  farm  in  Texas  for  one 
year,  the  lease  to  counnence  from  the  date  of  plaintiffs'  arrival  at  defendant's 
farm,  I'ursuant  to  this  contract  plaintiffs  moved  with  their  families,  horses 
and  wagons  from  Kentucky  to  Texas,  and  ni)on  their  arrival  defendant  re- 
pudiated the  agreement  The  court,  overruling  McDaniel  v.  Ilutcherson  (1910) 
136  Ky.  412,  124  S.  W.  3S4,  sustained  a  demurrer  to  plaintiffs'  complaint  for 
the  expenses  incurred  upon  their  trip  from  Kentucky  to  Texas  and  return, 
saying:  "In  the  case  under  consideration,  the  plaintiff's  merely  sustained  a 
loss.  Defendant  received  no  benetit.  Had  he  received  a  benefit,  the  law 
would  imply  an  obligation  to  pay  therefor.  Having  received  no  benetit,  no 
obligation  to  pay  is  implied.  The  statute  says  that  the  contract  of  defendant 
made  with  plaintiffs  is  unenforceable.  IJefenrlant.  therefore,  had  the  legal 
right  to  decline  to  carry  it  out.  To  require  him  to  pay  plaintiffs  for  losses  and 
expenses  incurred  on  the  faith  of  the  contract  without  any  benefit  accruing 
to  him  would,  in  effect,  uphold  a  contract  upon  which  the  statute  expressly 
declares  no  action  shall  be  brought." 

In  Seymour  v,  Oelrichs  (1909)  156  Cal.  782,  100  Paa  8S,  1.34  Am.  St.  Rep. 
154,  plaintiff,  at  defendant's  request,  gave  up  a  life  position  on  the  police 
force  to  accept  employment  under  defendant  for  ten  years  in  accordance  with 
a  parol  contract,  which  contract  defendant  declined  to  perform.  The  court  al- 
lowed plaintiff'  damages  in  an  action  on  the  contract,  holding  that  because  of 
plaintiff's  change  of  position  in  reliance  on  such  contract  the  defendant  was 
estopped  to  plead  the  Statute  of  Frauds. 


Sec.  3)  CONTRACT  WITHIN   STATUTE   OF   FRAUDS  331 

FABIAN  V.  WASATCH  ORCHARD  CO. 
(Supreme  Court  of  Utah,  1912.    41  Utah,  404,  125  Pac.  860.) 

Appeal  from  District  Court,  Salt  Lake  County ;  Geo.  G.  Armstrong, 
Judge. 

Action  by  Ferd  J.  Fabian  against  the  Wasatch  Orchard  Company. 
Judgment  for  plaintiff,  and  defendant  appeals. 

Straup,  J.  The  complaint  is  in  two  counts.  One  that  the  plaintiff, 
a  merchandise  broker,  rendered  services  for  the  defendant,  a  Utah 
corporation  engaged  in  canning  and  selling  fruits  and  vegetables,  in 
advertising,  introducing,  and  selling  its  products  in  Eastern  markets, 
in  consideration  of  which  it,  by  a  written  agreement,  agreed  to  give  the 
plaintiff  the  exclusive  right  for  three  years  to  sell,  as  a  broker,  all  its 
manufactured  products  in  the  state  of  Utah  and  in  southern  Idaho,  for 
which  the  plaintiff  was  to  have  a  brokerage  of  2V2  per  cent,  of  the 
amount  of  all  sales  made  by  him  or  by  others  in  such  territory  during 
such  time.  In  the  second  count,  it  is  alleged  that  the  plaintiff,  at  the 
instance  and  request  of  defendant,  rendered  services  for  it  in  advertis- 
ing, introducing,  and  selling  its  products  in  Eastern  markets,  and  there 
creating  a  market  for  its  products,  which  services  were  reasonably 
worth  the  sum  of  $6,000. 

The  case  was  tried  to  the  court,  without  a  jury.  The  court  found: 
That  the  defendant  had  invested  a  considerable  sum  of  money  in 
growing  asparagus  for  canning  purposes,  and  that  the  asparagus  plants 
had  reached  a  stage  where  they  would  be  producing  in  considerable 
quantities.  That  the  defendant  was  heavily  in  debt  and  in  straightened 
financial  circumstances.  That  it  had  a  large  quantity  of  such  product 
on  hand,  but  had  no  market  or  outlet  for  it.  That  it  desired  to  convert 
the  products  into  cash,  regardless  of  the  profit  from  the  sales  thereof, 
and  to  create  a  market  therefor  in  Eastern  cities,  especially  in  Kansas 
City,  St.  Louis,  Cincinnati,  Chicago,  Pittsburgh,  Boston,  New  York, 
and  Philadelphia,  and  to  advertise  and  introduce  its  products  in  such 
markets.  That  thereupon  the  plaintiff,  a  merchant  broker  at  Salt  Lake 
City,  at  the  solicitation  and  request  of  the  general  manager  of  the  de- 
fendant, and  for  and  on  its  behalf,  visited  such  cities  and  there  adver- 
tised the  defendant's  products,  and  devoted  time  and  services  in  intro- 
ducing them  and  in  creating  a  market  for  them,  and  solicited  and  ob- 
tained orders  amounting,  at  the  prices  fixed  for  the  products,  to  the 
aggregate  sum  of  between  $30,000  and  $35,000.  That  the  defendant' 
accepted  the  benefit  of  such  services,  and,  to  the  extent  of  its  capacity, 
filled  such  orders  to  the  amount  of  at  least  $16,000,  and  tliat  the  rea- 
sonable value  of  plaintiff's  services  was  $2,300. 

The  court  further  found  that,  in  consideration  of  the  services  to  be 
rendered,  the  defendant's  general  manager  orally  agreed  to  give  plain- 
tiff for  three  years  the  exclusive  right  to  sell  the  defendant's  products 
in  Utah  and  Southern  Idaho,  and  to  give  him  2^  per  cent,  commission 


332  BENEFITS   UNDER   CONTRACT   PARTIALLY   PERFORMED  (Ch.  3 

of  all  sales  made  in  such  territory  during  such  time,  either  by  himself 
or  others.  The  oral  contract  was  made  about  the  IStli  day  of  April, 
1909.  The  services  rendered  by  plaintiff,  and  for  which  compensation 
is  sought,  were  rendered  by  him  between  that  day  and  the  23d  day  of 
May  of  that  year.  The  contract  was  reduced  to  writing  in  December, 
1909,  and  was  signed  and  delivered  in  the  name  of  the  defendant  and 
by  the  person  purporting  to  act  as  its  general  manager,  the  same  person 
who  made  the  oral  contract  with  the  plaintiff.  The  court  found  that  the 
person  so  acting  was  the  defendant's  general  manager  when  the  oral 
contract  was  made,  and  that  he  then  had  authority  to  make  such  a 
contract,  but  that  when  the  written  contract  was  made  he  then  was  not 
its  general  manager,  and  was  not  in  its  employ,  he  having  theretofore 
left  it,  and  hence  found  that  the  written  contract  was  unauthorized, 
and  was  not  the  defendant's  contract.  The  defendant,  after  the  rendi- 
tion of  the  services,  repudiated  the  contract,  notified  the  plaintiff  to  that 
effect,  and  refused  to  ratify,  confirm,  or  approve  it,  or  to  be  bound 
by  it.  The  court  also  found  that  the  oral  contract,  though  made  by 
an  authorized  agent  of  the  defendant,  nevertheless  was  unenforceable, 
because  by  its  terms  it  was  not  to  be  performed  within  one  year,  and 
was  therefore  within  the  statute  of  frauds.  The  court  further  found 
that  in  January,  1910,  the  defendant  discontinued  the  business  of  can- 
ning fruits  and  vegetables,  and  in  the  spring  of  that  year  sold  and  dis- 
posed of  its  business. 

Upon  the  findings,  and  in  response  to  the  second  count  of  the  com- 
plaint, the  court  rendered  judgment  in  favor  of  the  plaintiff  for  the 
sum  of  $2,300,  the  reasonable  value  of  the  services  rendered  by  the 
plaintiff  and  received  and  accepted  by  the  defendant.  From  the  judg- 
ment, the  defendant  appeals. 

In  its  brief.it  states  the  proposition  for  consideration  to  be:  "There 
is  but  one  question  in  this  case,  and  that  is :  Was  the  defendant  en- 
riched in  any  manner  by  the  part  performance  of  the  oral  contract, 
which  was  within  the  statute  of  frauds,  and  what  was  the  value  of 
that  enrichment?  In  other  words,  what  was  the  value  of  the  benefits 
received  by  the  defendant  from  the  part  performance  of  the  oral  con- 
tract by  the  plaintiff?" 

Both  parties  agree  that  the  law  on  the  subject  is  as  stated  in  Browne 
on  Statute  of  Frauds  (5th  Ed.)  §  118a,  that  "the  rule  that,  where  one 
person  pays  money  or  performs  services  for  another  upon  a  contract 
void  under  the  statute  of  frauds,  he  may  recover  the  money  upon  a 
count  for  money  paid,  or  recover  for  the  services  upon  a  quantum  me- 
ruit, applies  only  to  cases  where  the  defendant  had  received  and  holds 
the  money  paid  or  the  benefit  of  the  services  rendered ;"  and,  as  stated 
in  29  Am.  &  E.  Ency.  Law  (2d  Ed.)  p  836,  that,  "although  part  per- 
formance by  one  of  the  parties  to  a  contract  within  the  statute  of 
frauds  will  not,  at  law,  entitle  such  party  to  recover  upon  the  contract 
itself,  he  may  nevertheless  recover  for  money  paid  by  him,  or  property 
delivered,  or  services  rendered,  in  accordance  with  and  upon  the  faith 


Sec.  3)  CONTRACT   WITHIN   STATUTE   OF   FRAUDS  333 

of  the  contract.  The  law  will  raise  an  implied  promise  on  the  part  of 
the  other  party  to  pay  for  what  has  been  done  in  the  way  of  part  per- 
formance. But  this  right  to  recover  is  not  absolute.  The  plaintiff  is 
entitled  to  compensation  only  under  such  circumstances  as  would 
warrant  a  recovery  in  case  there  was  no  express  contract ;  and  hence  it 
must  appear  that  the  defendant  has  actually  received,  or  will  receive, 
some  benefit  from  the  acts  of  part  performance.  It  is  immaterial  that 
the  plaintiff'  may  have  suffered  a  loss,  because  he  is  unable  to  enforce 
the  contract." 

But  the  defendant  asserts  that  under  the  facts  found  by  the  court 
the  "benefits"  received  by  the  defendant  cannot  be  measured  by  ascer- 
taining and  determining  the  reasonable  value  of  the  services  rendered  by 
plaintiff,  and  accepted  and  received  by  the  defendant,  but  by  ascertain- 
ing and  determining  whether  the  services  resulted  to  the  defendant's 
profit  or  gain,  whether  it  "was  enriched"  thereby,  and,  if  so,  "what  was 
the  value  of  that  enrichment?"  Hence  it  urges  that  the  court  erred  in 
permitting  the  plaintiff  to  prove  the  reasonable  value  of  the  services, 
and  in  giving  the  plaintiff  a  judgment  for  the  sum  of  $2,300,  the  found 
reasonable  value  thereof,  and  further  assails  the  judgment  for  the  rea- 
son, as  contended  by  it,  that  the  products  sold  by  it  in  the  Eastern 
markets  on  the  orders  solicited  and  procured  by  the  plaintiff  were  sold 
for  less  than  cost  of  manufacturing  them,  and  were  therefore  sold,  not 
to  the  defendant's  profit  or  gain,  but  to  its  loss ;  and  hence  the  defend- 
ant received  no  "benefit"  from  the  services  rendered  by  the  plaintiff 
and  accepted  and  received  by  it. 

It  is  not  contended  that  the  services  rendered  by  the  plaintiff,  or  the 
orders  obtained  by  him,  were  not  rendered  or  obtained  in  accordance 
with  the  contract.  No  such  claim  is  made.  The  claim  made  is  that 
the  defendant  did  not  profit,  "v>^as  not  enriched,"  by  the  transaction. 
The  defendant's  contention  leads  to  this:  If  A.  should  orally  employ 
B.  for  a  period  of  three  years  to  do  the  labor  in  the  manufacture  of 
100,000  brick  (assuming  such  a  contract  to  be  within  the  statute  of 
frauds),  and  if  B.,  on  the  faith  of  and  in  accordance  with  the  contract, 
should,  within  the  first  nine  months,  make  and  produce  20,000,  which 
were  received  and  accepted  by  A.,  and  A.  should  then  repudiate  the 
contract  and  refuse  to  longer  engage  B.'s  services,  B.  could  not  recover 
the  reasonable  value  of  the  services  on  a  quantum  meruit,  but  to  enti- 
tle him  to  recover  it  would  be  essential  for  him  to  show  that  the  mar- 
ket value  of  the  brick  so  made  by  him  and  received  by  A.  was  more 
than  the  cost  of  manufacture ;  otherwise  A.  received  no  "benefit"  from 
B.'s  services.  Or,  if  A.  should  orally  employ  B.  to  work  on  his  farm 
for  a  term  of  three  years  and  agree  to  give  him  10  acres  of  land  at  the 
end  of  that  period,  and  if  B.,  on  the  faith  of  the  contract,  should  work 
nine  months  on  the  farm  for  A.  in  tilling  the  soil,  sowing  grain,  and 
reaping  crops,  and  A.  should  then  repudiate  the  contract  and  refuse  to 
longer  engage  B.'s  services,  again  B.  could  not  recover  the  reasonable 
value  of  his  services;  and  if  it  were  made  to  appear  that  because  of 


334      BENEFITS  UNDER  CONTRACT  PARTIALLY  PERFORMED    (Ch.  3 

drought  or  a  falling  market,  or  other  causes  not  due  to  his  negligence 
or  willfulness,  the  market  price  of  the  products  was  less  than  the  cost 
of  production,  then  A,  received  no  benefit  from  B.'s  services,  and  the 
latter  could  not  recover  from  the  former. 

We  think  appellant's  notion  of  what  is  meant  by  "benefit,"  as  the 
term  is  used  by  text-writers  and  courts,  and  applied  in  cases  of  the  na- 
ture under  consideration,  is  not  borne  out  by  the  authorities.  The 
texts  and  cases  cited  by  it  do  not  support  its  contention.  Bowling  v. 
McKenney,  124  Mass.  478,  is  cited.  There  A.  orally  agreed  to  convey 
land  to  B.,  and  to  take  in  exchange  or  payment  a  monument  to  be  made 
by  B,  B.  finished  the  monumicnt  and  tendered  it  with  the  money ;  but 
A.  refused  to  receive  the  monument,  and  refused  to  convey.  There 
A.  did  not  receive  or  accept  the  monument.  He  did  not  receive  or 
accept  the  fruits  of  B.'s  services,  and  hence  received  no  benefit.  Had 
he  received  and  accepted  the  monument  and  then  repudiated  the  con- 
tract and  refused  to  convey,  tlien,  clearly,  B.  would  have  been  entitled 
to  recover  the  reasonable  value  of  the  monument  so  delivered  to  and 
accepted  by  A.  The  case  in  no  wise  makes  against  that  doctrine,  and 
falls  within  the  rule  stated  in  20  Cyc.  299,  that,  "where  services  are  ren- 
dered on  an  agreement  which  is  void  by  the  statute,  an  action  will  lie 
on  the  implied  promise  to  pay  for  such  services ;  but  the  promise  is 
implied,  not  from  the  services  alone,  but  from  the  benefit  to  defendant 
as  well,  and  if  defendant  has  received  no  benefit,  as,  for  instance, 
where  work  has  been  performed  on  a  chattel  which  is  never  delivered, 
there  can  be  no  recovery."  To  that  effect  is  also  the  cited  case  of 
Banker  v.  Henderson,  58  N.  J.  Law,  26,  2>2  Atl.  700. 

We  are  also  referred  to  Henrikson  v.  Henrikson,  143  Wis.  314,  127 
N.  W.  963,  ZZ  L.  R.  A.  (N.  S.)  534.  That  was  an  action  to  enforce 
specific  performance  of  an  oral  contract  to  convey  real  estate  upon 
performance  by  the  purchaser  and  the  making  of  valuable  permanent 
improvements  on  the  land  by  him.  The  lower  court  denied  and  the 
appellate  court  granted  specific  performance  of  the  contract.  The  case 
is  not  in  point,  and  does  not  decide  anything  in  support  of  the  appel- 
lant here. 

Bristol  V.  Sutton,  115  Mich.  365,  73  N.  W.  424,  is  also  cited.  There 
a  minor  was  emancipated  and  left  home.  Shortly  afterwards  his  uncle 
agreed  to  give  him  $1,000  if  he  would  return  home  and  remain  with 
and  assist  his  father  on  the  father's  farm  until  he  should  attain  his 
majority.  The  minor  carried  out  the  agreement.  It  was  held  that, 
the  contract  being  within  the  statute  of  frauds,  the  approval  by  the 
uncle  of  the  minor's  conduct  was  not  such  a  subsequent  act  as  to  create 
an  obligation  to  pay ;  and  that,  since  the  uncle  had  derived  no  benefit 
from  tlie  plaintiff's  labor,  the  contract  was  void.®*  This  case  also  falls 
within  the  rule  stated  in  Bowling  v.  McKenney,  supra,  and  in  no  way 
supports  the  defendant's  contention. 

•«  But  see  Clement  v.  Howe  (1914)  33  S.  D.  499,  146  N.  W.  700. 


Sec.  3)  CONTRACT   WITHIN   STATUTE   OF   FRAUDS  335 

It  is  unnecessary  to  review  in  detail  all  the  cases  cited  by  appellant. 
An  examination  of  them  will  show  that  they  do  not  support  any  such 
doctrine  as  is  contended  for  by  it.  We  think  the  well-established  rule 
is  that,  where  one  who,  not  in  default,  on  faith  of  and  in  accordance 
with  a  contract  unenforceable  because  within  the  statute  of  frauds,  but 
not  malum  prohibitum  nor  malum  in  se,  has,  in  pursuance  of  the  con- 
tract, rendered  services  for  the  adversary  party,  who,  with  knowledge 
or  acquiescence,  accepted  them  and  received  the  benefit  of  them  and 
repudiated  the  contract,  he  may  recover  on  a  quantum  meruit  the  rea- 
sonable value  thereof — not  the  profit  or  gain  resulting  to  the  adversary 
party  by  reason  of  the  transaction,  nor  the  loss  suffered  or  sustained 
by  the  other,  but  compensation  for  the  reasonable  value  of  the  services 
rendered  by  the  one  and  accepted  and  received  by  the  other.  Page  on 
Contracts,  c.  74;  Vickery  v.  Ritchie,  202  Mass.  247,  88  N.  E.  835,  26 
Iv.  R.  A.  (N.  S.)  810;  Stout's  Adm'r  v.  Royston  (Ky.)  107  S.  W.  785 ; 
Cozad  v.  Elam,  115  Mo.  App.  136,  91  S.  W.  434;  Appeal  of  Hull  v. 
Thomas,  82  Conn.  647,  74  Atl.  925  ;  Wojahn  v.  Nat'l  Union  Bank,  144 
Wis.  646,  129  N.  W.  1068;  Jackson  v.  Stearns,  58  Or.  57,  113  Pac.  30, 
37  L.  R.  A.  (N.  S.)  639,  Ann.  Cas.  1913A,  284;  Patten  v.  Hicks,  43 
Cal.  509;  Lapham  v.  Osborne,  20  Nev.  168,  18  Pac.  881;  Snyder  v. 
Neal,  129  Mich.  692,  89  N.  W.  588;  Werre  v.  Thresher  Co.,  27  S.  D. 
486,  131  N.  W.  721. 

We  see  nothing  in  appellant's  cases  which  makes  against  this.  On 
this  theory  the  case  was  tried  and  the  judgment  rendered.  We  think 
it  should  be  affirmed,  with  costs.    It  is  so  ordered.*" 


FORD  V.  STROUD. 
(Supreme  Court  of  North  Carolina,  1909.     150  N.  C.  3G2,  G4  S.  E.  1.) 

Appeal  from  Superior  Court,  Columbus  County;  Lyon,  Judge. 

Plaintiff  sues  for  the  recovery  of  money  paid  defendant  on  account 
of  the  purchase  money  of  a  tract  of  land  under  a  parol  contract  to 
purchase,  and  for  compensation  for  improvements  put  upon  the  land 
while  in  possession  under  the  contract.  He  sets  out  in  his  complaint 
the  contract,  alleges  the  payment  of  the  money,  and  that  he  put  the 
improvements  on  the  land,  and  the  refusal  of  defendant  to  make  a 
deed.  Defendant  does  not  specifically  deny  these  allegations,  but  sets 
up  new  matter,  by  way  of  avoidance,  etc.  Plaintiff  testified :  That 
defendant  proposed  to  sell  him  the  land,  and  he  agreed  to  buy  it  for 
$750.  He  paid  defendant  $200  on  account  of  the  purchase  money  and 
went   into   possession.     The  contract   was   not   reduced   to    writing. 

•8  See  61  University  of  Pennsylvania  Law  Review.  330. 

Compare  Mooney  v.  York  Iron  Co.,  page  3S0,  infra;  Vickery  v.  Ritchie  (1909) 
202  Mass.  247,  88  N.  E.  835,  26  L.  R.  A.  (N.  S.)  810,  a  case  of  mutual  mistake, 
where  the  same  rule  of  damages  was  applied.  (The  facts  of  this  case  are  stat- 
ed, page  121,  note,  supra.) 


336      BENEFITS  UNDER  CONTRACT  PARTIALLY  PERFORMED    (Cll.  3 

Plaintiff  paid  an  additional  $200,  stayed  on  the  land  two  years  making 
valuable  improvements,  buildings,  etc.,  and  "had  to  leave."  Defendant 
returned  $80  of  the  amount  paid.  When  plaintiff  demanded  of  defend- 
ant a  deed  for  the  land,  he  told  him  to  call  on  Mr.  D.  L.  Gore,  who 
would  make  the  deed.  That  he  went  to  Mr.  Gore  to  get  a  deed,  and  he 
refused  to  give  him  one.  "I  told  defendant  that  I  wanted  him  to  give 
my  money  back,  and  he  refused  to  do  so."  Plaintiff  testified,  without 
objection,  that  he  put  improvements  on  the  land,  giving  estimate  of 
value.  Defendant  offered  no  evidence,  but  moved  for  judgment  of 
nonsuit,  which  was  denied,  and  he  excepted.  There  was  a  verdict  for 
plaintiff  on  all  of  the  issues.    Judgment  and  appeal. 

Connor,  J.**"  The  defendant's  motion  for  judgment  of  nonsuit  pre- 
sents the  merits  of  the  appeal.  The  motion  admits  the  plaintiff's  testi- 
mony to  be  true.  If,  upon  these  facts,  he  is  entitled  to  maintain  the 
action,  the  rulings,  in  regard  to  the  admission  of  evidence  and  the  in- 
structions, are  correct  While  the  answer  does  not  specifically  admit 
the  allegation  in  the  complaint  in  regard  to  the  contract,  it  does  riot 
contain  a  general  or  specific  denial,  as  required  by  the  Code  of  Proce- 
dure. 

We  think  that,  upon  both  reason  and  authority,  the  plaintiff  is 
entitled  to  maintain  his  action  and  recover  the  amount  paid  on  account 
of  the  purchase  money  and  compensation  for  his  improvements  to  the 
extent  of  the  enhanced  value  of  the  land,  less  profits  made  by  him  while 
in  possession.  It  is  true  that  the  contract  of  purchase,  being  in  parol, 
is  void.  It  appears  that  defendant  was  not  able  to  make  title  until, 
by  complying  with  the  terms  of  a  bond  which  he  held  from  D.  L.  Gore, 
he  acquired  one  himself,  and  this  he  has  failed  to  do,  resulting  in  plain- 
tiff's losing  the  land.  In  Ellis  v.  Ellis,  16  N.  C.  402,  it  was  held  that 
a  party  who  had  paid  the  purchase  money  for  land,  under  a  parol 
contract  which  was  repudiated  by  the  vendor,  was  not  entitled  to  main- 
tain a  bill  in  equity,  either  for  specific  performance  because  of  the 
statute  of  frauds,  or  for  the  amount  paid  on  the  purchase  price.  The 
reason  given  by  Ruffin,  C.  J.,  is :  "Because  so  far  as  concerns  the  land 
the  contract  is  merely  void,  and  the  money  can  be  recovered  at  law  in 
an  action  for  money  had  and  received." 

There  is,  in  such  cases,  a  total  failure  of  consideration,  and,  as  it 
would  be  inequitable  to  permit  the  vendor  to  repudiate  his  contract  and 
retain  the  money  paid  upon  it,  the  law  gives  to  the  vendee  an  equi- 
table action,  based  upon  an  implied  assumpsit  for  money  had  and  re- 
ceived. The  right  to  be  reimbursed  for  the  payment  of  the  purchase 
money  on  a  parol  contract,  for  the  purchase  of  land,  repudiated  by  the 
vendor,  and  have  compensation  for  betterments  made  while  in  posses- 
sion under  the  contract  has,  in  many  cases,  been  enforced  by  courts 
of  equity,  by  enjoining  the  eviction  of  the  vendee  until  the  money  paid 
on  the  purchase  price  has  been  repaid  and  compensation  for  improve- 
ments made.    In  Albca  v.  Griffin,  22  N.  C.  9,  the  bill  was  for  specific 

«e  The  statement  of  facts  is  abridged,  and  a  portion  of  the  opinion,  discuss- 
ing the  validity  of  plaintiff's  tender,  is  omitted. 


Sec.  3)  CONTRACT   WITHIN   STATUTE   OP   FRAUDS  337 

performance  of  the  contract.  The  defendants  relied  upon  the  statute 
of  frauds ;  the  contract  being  in  parol.  Gaston,  J.,  said :  "We  admit 
this  objection  to  be  well  founded,  and  we  hold,  as  a  consequence  from 
it,  that,  the  contract  being  void,  not  only  its  specific  performance  can- 
not be  enforced,  but  that  no  action  will  lie,  in  law  or  equity,  for  dam- 
ages because  of  nonperformance.  But  we  are  nevertheless  of  the  opin- 
ion that  plaintiff  has  an  equity  which  entitles  him  to  relief,  and  that 
parol  evidence  is  admissible  for  the  purpose  of  showing  that  equity. 
The  plaintiff's  labor  and  money  have  been  expended  on  improving 
property  which  the  ancestor  of  the  defendants  encouraged  him  to  ex- 
pect should  become  his  own,  and,  by  the  act  of  God,  or  the  caprice  of 
the  defendants,  this  expectation  has  been  frustrated.  The  consequence 
is  a  loss  to  him  and  a  gain  to  them.  It  is  against  conscience  that  they 
should  be  enriched  by  gains  thus  acquired  to  his  injury."  Baker  v. 
Carson,  21  N.  C.  381.  In  Dunn  v.  Moore,  38  N.  C.  364,  relief  was  de- 
nied because  the  contract  set  up  in  the  bill  was  denied.  Nash,  J.,  said 
that,  if  defendant  had  admitted  the  contract,  the  court  would  not  have 
permitted  him  to  put  plaintiff  out  "without  returning  the  money  he 
had  received  and  compensating  him  for  his  improvements." 

While,  in  the  case  at  bar,  the  contract  is  not  denied,  if  it  had  been 
we  should  not  hesitate  to  follow  the  decision  in  Luton  v.  Badham,  127 
N.  C.  96,  Z7  S.  E.  143,  53  L.  R.  A.  ZZ7,  80  Am.  St.  Rep.  783,  in  which 
Mr.  Justice  Furches  reviews  this  and  all  of  the  other  cases  and  shows 
conclusively  that  the  right  to  relief  cannot  be  defeated  by  a  mere  de- 
nial of  the  contract.  See  the  very  able  and,  the  writer  thinks,  conclu- 
sive opinion  of  Smith,  C.  J.,  in  McCracken  v.  McCracken,  88  N.  C. 
272.  Certainly  this  cannot  be  done  where  the  action  is  for  the  re- 
covery of  the  purchase  money,  as  upon  an  implied  assumpsit  for  mon- 
ey had  and  received,  or  for  money  paid  for  a  consideration  which  has 
failed.  In  Daniel  v.  Grumpier,  75  N.  C.  184,  Rodman,  J.,  says  that 
the  right  to  recover  the  purchase  money  and  compensation  for  im- 
■provements  against  one  who  has  repudiated  his  parol  contract  to  con- 
vey land  "stands  on  general  principles  of  equity."  As  said  by  Judge 
Furches  in  Luton  v.  Badham,  supra,  all  of  the  cases  are  based  upon 
this  theory.  It  is  doubtful  whether,  prior  to  the  abolition  of  the  dis- 
tinction between  actions  at  law  and  suits  in  equity,  an  action  could 
have  been  maintained,  at  law,  for  compensation  for  improvements  put 
upon  land  by  the  vendee.  The  court  of  equity  had  granted  relief  by 
enjoining  the  eviction  of  the  vendee  by  the  vendor,  who  had  repudiated 
his  contract  until  he  had  made  compensation  for  improvements. 
Whatever  difficulty  was  encountered  because  of  technical  rules  of 
pleading  disappears  when  forms  of  action  are  aboHshed  and  a  plaintiff 
recovers  upon  the  facts  stated  in  his  complaint  and  proven  upon  the 
trial. 

The  careful  review  of  the  authorities  and  satisfactory  discussion  in 
the  opinion  in  Luton  v.  Badham,  supra,  and  the  dissent  of  Smith,  C.  J., 
Thubs.Quasi  Cont. — 22 


338  BENEFITS   UNDER   CONTRACT   PARTIALLY   PEBFORMED  (Ch.  3 

in  McCracken's  Case,  supra,  relieves  us  of  the  duty  of  doing  more  than 
to  refer  to  them.  It  is  interesting  to  observe  the  trend  of  thought  upon 
the  subject  as  iUustrated  in  the  decided  cases,  showing  how  the  law 
"works  itself  pure"  and  enforces  the  maxim  "that  there  is  no  wrong 
without  a  remedy."  If,  as  said  by  Judge  Gaston,  it  is  inequitable  for  a 
man  to  make  a  parol  contract  to  sell  land,  receive  the  purchase  money, 
and  encourage  the  vendee  to  make  improvements  on  it,  and,  by  repudi- 
ating the  contract,  retain  the  money  and  take  the  land,  with  its  enhanc- 
ed value,  certainly  the  court  must  find  some  way,  either  preventive  or 
remedial,  to  make  him  "do  equity."  We  think  that  it  has  done  so.  We 
cannot  perceive  any  good  reason  for  saying  that,  so  long  as  the  vendee 
retains  possession  under  the  contract,  he  will  be  protected  in  his  right, 
but  if,  seeing  that  he  can  get  no  title,  he  surrenders  possession,  he  is 
without  remedy.  His  honor  correctly  denied  the  motion  for  judgment 
of  nonsuit  and  admitted  the  evidence  of  the  contract.  *  *  * 
Upon  an  inspection  of  the  entire  record,  we  find  no  error.'^ 

87  Accord:  Ernst  v.  Schmidt  (1912)  66  Wash.  452,  119  Pac.  828,  Ann.  Gas. 
1913C,  389 ;    Clark  v.  Davidson  (ISSl)  53  Wis.  317,  10  N.  W.  384. 

In  many  jurisdictions,  however,  recovery  for  tlie  value  of  improvements 
made  by  a  purchaser  under  a  parol  contract  of  sale  is  denied  at  law,  Shreve  v. 
Grimes  (1823)  4  Litt.  (14  Ky.)  220,  14  Am.  Dec.  117 ;  Welsh  v.  Welsh  (1832)  5 
Ohio  425 ;  Cook  v.  Doggett  (1861)  2  Allen  (Mass.)  439 ;  though  sometimes  al- 
lowed in  equity,  Masson  v.  Swan  (1871)  6  Heisk.  (53  Tenn.)  450  (improvements 
and  taxes);  Vaughn  v.  Vaughn  (1S9S)  100  Tenn.  282,  45  S.  W.  677  (taxes,  and 
money  paid  in  discharge  of  a  mortgage) ;  Fox's  Heirs  v.  I^ngly  (1818)  1  A.  K. 
Marsh.  (8  Ky.)  388  (improvements,  less  value  of  plaintiff's  occupancy) ;  Pat- 
terson V.  Yeaton  (1859)  47  Me.  308. 

Similarly  the  vendee  in  possession  is  often  allowed  to  resist  ejectment  until 
he  is  compensated  for  his  improvements  (less  a  reasonable  rental  for  the  use 
of  the  premises).  Padgett  v.  Decker  (1011)  145  Ky.  227,  140  S.  W.  152;  Pass 
V.  Brooks  (1899)  125  N.  C.  129,  34  S.  E.  228.  as  modified  on  rehearing  in 
(1900)  127  N.  C.  119,  37  S.  E.  151.     See  Woodward,  Quasi  Contracts,  §  102. 

Compare  note  page  444,  infra. 

Improvements  Made  by  a  Lessee  Pursuant  to  a  Parol  Contract. — "The 
facts  of  this  case  are  that  the  defendant  agreed  to  grant  a  lease  of  a  house 
to  the  plaintiff  for  seven,  fourteen  or  twenty-one  years,  and  it  was  at  first 
part  of  the  agreement  that  the  plaintiff  should  pay  £75.  towards  certain  altera- 
tions in  the  house.  Afterwards,  the  defendant  agreed  that  the  plaintiff  should 
send  in  his  workmen  to  paint  the  drawing  room  in  a  particular  manner.  Now, 
it  seems  to  me  quite  clear  that  the  agreement  between  the  plaintiff  and  the 
defendant  was  never  expressed  in  writing  so  as  to  satisfy  the  Statute  of 
Frauds.  The  plaintiff  cannot,  therefore,  bring  an  action  on  the  agreement; 
but  the  question  remains,  can  he,  under  the  common  counts,  recover  the 
amount  which  he  has  expended  on  the  house  according  to  the  finding  of  the 
arbitrator.  Now,  it  seems  to  me,  that  what  the  plaintiff  did  was  very  much 
as  if  he  had  paid  the  £75.  into  the  hands  of  the  defendant  after  the  making  of 
the  agreement,  in  which  ease  he  would  clearly  be  entitled  to  recover  back  the 
money.  I  cannot  see  that  the  fact  that  he  has  expended  the  money  upon  the 
improvement  of  the  house  with  the  consent  of  the  defendant  can  make  any 
difference."     Pulbrook  t.  Lawes  (1876)  1  Q,  B.  D,  284,  per  Lush,  J. 


Sec.  3)  CONTRACT  WITHIN   STATUTE   OF   FRAUDS  339 


CROMWELL  V.  NORTON. 

(Supreme  Judicial  Court  of  Massachusetts,  1906.     193  Mass.  201,  79  N.  E,  43a, 

118  Am.  St.  Rep.  499.) 

Morton,  J.'®  This  is  an  action  to  recover  the  value  of  certain  real 
estate  conveyed  by  the  plaintiff  to  the  defendant.  The  case  was  tried 
partly  on  agreed  facts  and  partly  on  oral  testimony.  There  was  a  ver- 
dict for  the  plaintiff  and  the  case  is  here  on  exceptions  by  the  defend- 
ant to  certain  rulings  and  refusals  to  rule  in  regard  to  certain  matters 
of  evidence  and  in  regard  to  the  statute  of  frauds  and  the  statute  of 
limitations  both  of  which  defenses  were  set  up  in  the  answer. 

The  plaintiff's  case  was  in  substance  this :  Being  about  to  go  to  sea 
he  conveyed  the  land  in  question  to  the  defendant,  who  is  his  sister,  in 
1880,  so  that  if  he  did  not  return  she  should  have  it,  but  with  the 
agreement  on  her  part  that  if  he  did  return  and  wanted  it  at  any  time 
she  should  reconvey  it  to  him.  He  returned  but  the  fact  that  he  had 
given  the  deed  of  the  land  in  question  escaped  his  attention  as  he  tes- 
tified till  it  was  recalled  to  him  by  her  in  1902  in  connection  with  an- 
other matter  when  he  demanded  a  reconveyance  of  the  land  which  she 
refused.  The  defendant  contended  that  she  was  to  sell  a  part  of  the 
land  and  pay  over  the  proceeds  which  she  did  and  that  as  to  the  rest, 
being  the  land  in  controversy,  the  conveyance  was  an  absolute  one  and 
she  denied  that  there  was  any  such  agreement  as  alleged  by  the  plain- 
tiff. 

So  far  as  the  statute  of  frauds  is  concerned  the  case  comes  within 
the  well-settled  principle  that  if  one  conveys  to  another  land  or  other 
property  pursuant  to  an  oral  agreement  which  such  other  party  refuses 
to  perform  and  cannot  be  compelled  to  perform  because  within  the 
statute,  the  value  of  the  property  so  conveyed  can  be  recovered  by  the 
party  conveying  it.*  Kelley  v.  Thompson,  181  Mass.  122,  63  N.  E.  332  ; 
Peabody  v.  Fellows,  177  Mass.  293,  58  N.  E.  1019;  Miller  v.  Roberts, 
169  Mass.  145,  47  N.  E.  585 ;  Holbrook  v.  Clapp,  165  Mass.  563,  43  N. 
E.  508;  O'Grady  v.  O'Grady,  162  Mass.  290,  38  N.  E.  196.  Recovery 
is  allowed  in  such  a  case,  not  as  an  indirect  way  of  enforcing  the  con- 
tract which  would  be  contrary  to  sound  principles,  but  on  the  ground 
that  the  refusal  of  the  defendant  to  perform  constitutes  a  failure  of 
consideration  and  he  is  therefore  bound  to  make  the  plaintiff  whole  for 
what  he  has  got  from  him.  If  the  defendant  is  ready  to  perform,  the 
fact,  that  the  contract  i&  within  the  statute  and  he  could  set  up  the 
statute  if  he  chose  to,  is  immaterial.  Twomey  v.  Crowley,  137  Mass. 
184.  So  is  the  exact  nature  of  the  undertaking  on  the  part  of  the 
party  refusing  to  perform ;  whether  to  hold  in  trust  or  to  reconvey  for 
instance.  See  Twomey  v.  Crowley,  supra.  It  follows  that  the  oral  tes- 
timony in  regard  to  the  agreement  to  the  admission  of  which  the  de- 

«8  A  portion  of  the  opinion,  discussing  another  point,  is  omitted. 

♦This  is  a  minority  doctrine.    See  20  Harvard  Law  Review,  549,  551  et  seq. 


340  BENEFITS   UNDER   CONTRACT   PARTIALLY   PERFORMED  (Ch.  3 

fendant  objected  was  rightly  admitted,  and  that  the  ruling  of  the  court, 
in  regard  to  the  statute  of  frauds  was  correct. 

The  statute  of  limitations  did  not  begin  to  run  until  there  was  a  de- 
mand for  a  reconveyance  and  a  refusal,  and  the  agreed  facts  show  that 

that  was  not  till  1902.  Ryder  v.  Loomis,  161  Mass.  163,  36  N.  E. 
33569     i,     *     * 

We  see  no  error  in  the  rulings  or  refusals  to  rule  or  in  the  instruc- 
tions to  the  jury.    Exceptions  overruled.'^" 

8  9  In  Re  Taylor's  Estate  (1907)  132  Wis.  38,  111  N.  W.  229,  122  Am.  St.  Rep. 
943,  it  was  held  that,  where  senices  were  rendered  iu  reliance  upon  an  oral 
promise  to  devise  land,  the  Statute  of  Limitations,  in  so  far  as  the  right  to 
recover  upon  an  "implied  contract"  was  concerned,  began  to  run  from  the 
time  of  the  rendition  of  the  service,  and  not  from  the  death  of  the  promisor. 
But  see,  contra,  Hull  v.  Thoms  (1910)  82  Conn.  647,  74  Atl.  925. 

70  Recovery  fob  Benefits  Conferred  under  Contracts  Wnicn  are  Unen- 

FORCEAB'LE  BY  REASON   OF  STATUI-ES  ANALOGOUS  TO  TIIE  STATUTE   OF  FRAUDS.— 

In  Hoyt  V.  Taw  Paw  Grape  Juice  Co.  (1909)  1.58  Mich.  619, 123  N.  W.  529,  a  stat- 
ute provided  that  no  debt  sliould  be  incurred  on  behalf  of  a  partnership  associa- 
tion limited  in  excess  of  ^500,  unless  reduced  to  writing  and  signed  by  at  least 
two  managers.  The  plaintiff  agreed  to  work  for  the  defendant  partnership 
association  limited  for  two  years  at  a  monthly  salary  and  purchased  stock 
of  the  association,  as  a  part  of  the  same  transaction,  to  the  amount  of  $1,000. 
The  defendant  thereafter  failed  to  perform  the  contract.  The  court  held  that 
the  contract  was  void,  because  signed  by  only  one  manager,  but  allowed  the 
plaintiff  to  recover  the  money  he  had  paid  for  the  stock,  saying:  "It  is  sug- 
gested that  this  statute  precludes  the  making  of  a  contract  except  by  writing 
signed  by  two  managers,  and  therefore  no  implied  contract  can  arise  from  the 
acts  of  the  managers  or  the  receipt  of  the  plaintitf 's  money  by  defendant,  and 
therefore  plaintiff  cannot  maintain  an  action  for  money  had  and  received. 
The  right  to  bring  this  action  exists  whenever  a  person,  natural  or  artificial, 
has  in  his  or  its  possession  money  which  in  equity  and  good  conscience  be- 
longs to  the  plaintiff,  and  neither  express  promise  nor  privity  between  the 
parties  is  essential.  See  Beardslee  v.  Horton,  3  Mich.  560.  'It  is  an  equitable 
action,  and  can  be  maintained  in  all  cases  for  money  which  in  equity  and  good 
conscience  belongs  to  the  plaintiff.'  We  said,  in  Moore  v.  Mandlebaum,  8  Mich. 
433;  'We  understand  the  law  to  be  well  settled  that  the  action  of  assumpsit 
for  money  had  and  received  is  essentially  an  equitable  action,  fomided  upon 
all  the  equitable  circumstances  of  the  case  between  the  parties ;  and  if  it 
appear,  li'om  the  whole  case,  that  the  defendant  has  in  his  hands  money, 
which,  according  to  the  rules  of  equity  and  good  conscience,  belongs,  or  ought 
to  be  paid,  to  the  plaintitf,  he  is  entitled  to  recover :  and  that  as  a  general 
rule,  where  money  has  been  received  by  a  defendant  under  any  state  of  facets 
which  would  in  a  court  of  equity  entitle  the  plaintiff  to  a  decree  for  the  mon- 
ey, when  that  is  the  specitic  relief  sought,  the  same  state  of  facts  will  entitle 
him  to  recover  the  money  in  this  action.' " 

See,  also,  the  criticism  in  Woodward,  Quasi  Contracts,  p.  145,  note  3,  of  the 
decision  in  Donovan  v.  Harriman  (1910)  139  App.  Div.  586,  124  N.  Y.  Supp.  194. 

Rescission  of  Infant's  Contract. — The  right  of  an  Infant  to  recover  the 
consideration  paid  by  him  upon  his  rescission  of  a  contract  because  of  his 
infancy  is  quasi  contractual.  There  is  a  serious  conflict  of  authority  as  to 
whether  he  can  recover  unless  he  can  and  does  make  restitution  of  the 
benefit  received  by  him  under  the  contract.  See  Tiffany,  Persons  and  Domestic 
Relations,  §§  214,  215. 


Sec.  3)  CONTRACT   WITHIN  STATUTE  OF   FRAUDS  341 


II.  Plaintiff  Repudiates 
COLLIER  V.  CO  ATE  S. 

(Supreme  Court  of  New  York,  1854.     17  Barb.  471.) 

This  was  an  appeal  from  a  judgment  of  the  Steuben  county  court. 
The  action  was  commenced  before  a  justice  of  the  peace,  to  recover 
back  the  sum  of  $65  which  had  been  paid  by  the  plaintifif  upon  a  parol 
contract  for  the  sale  of  a  farm  by  the  defendant  to  the  plaintiff.  The 
complaint  was  for  money  lent,  and  money  paid.  The  defendant  denied 
the  allegations  in  the  complaint,  and  stated  that  if  he  had  received  any 
money  from  the  plaintiff  it  was  upon  the  condition  that  the  defendant 
would  enter  into  a  written  agreement  with  the  plaintiff,  at  a  future  day, 
which  the  defendant  alleged  he  was,  and  at  all  times  had  been,  ready 
to  do,  and  he  further  averred  that  he  had  suffered  great  damage  and 
expense  by  reason  of  the  plaintiff  not  performing  his  agreement.  A 
parol  agreement  between  the  parties,  for  the  sale  of  the  defendant's 
farm  to  the  plaintiff,  was  proved,  and  the  price  was  agreed  upon.  The 
plaintiff  paid  to  the  defendant  $65  upon  the  contract,  and  was  to  pay, 
within  a  week  or  ten  days,  enough  more  to  make  $200;  and  then  a 
written  contract  was  to  be  executed  by  the  parties.  Subsequently 
the  plaintiff  came  back  and  told  the  defendant  he  could  not  make 
out  the  $200,  and  therefore  could  not  take  the  farm,  and  he  sent 
word  to  the  defendant,  by  his  son,  that  he,  the  defendant,  might  have 
the  $65  the  plaintiff  had  paid  him  for  his  damages,  or  he  might  pay 
back  some  part  of  it  if  he  could  afford  to.  The  jury  found  a  verdict 
in  favor  of  the  plaintiff  for  $65,  and  the  justice  rendered  judgment  for 
that  sum,  with  costs.  On  appeal  the  county  court  affirmed  the  judg- 
ment. 

Johnson,  J.'^^  I  regard  the  rule  as  well  settled  in  this  country,  at 
least,  that  where  a  person  has  paid  money  upon  a  parol  contract  for 
the  purchase  of  lands,  which  is  void  by  the  statute  of  frauds,  he  can- 
not maintain  an  action  to  recover  back  the  money  so  paid,  so  long  as 
the  other  party  to  whom  the  money  has  been  paid  is  willing  to  per- 
form on  his  part. 

The  doctrine  has  been  twice  distinctly  declared  in  our  own  court, 
where  the  question  was  directly  before  it.  Abbott  v.  Draper,  4  Denio, 
51 ;  Dowdle  v.  Camp,  12  Johns.  451.  The  same  question  has  been  de- 
cided in  the  same  way  repeatedly  in  several  of  the  courts  of  our  sister 
states,  where  the  point  was  directly  involved.  Coughlin  v.  Knowlcs, 
7  Mete.  (Mass.)  57,  39  Am.  Dec.  759;  Thompson  v.  Gould,  20  Pick. 
(Mass.)  134,  142;  Duncan  v.  Baird,  8  Dana  (Ky.)  101 ;  Lane  v.  Shack- 
ford,  5  N.  H.  133;  Shaw  v.  Shaw,  6  Vt.  75;  Richards  v.  Allen,  17  Me. 
(5  Shepley)  296;  Sims  v.  Hutchins,  8  Smedes  &  M.  (Miss.)  328.  47 
Am.  Dec.  90;  Beaman  v.  Buck,  9  Smedes  &  M.  (Miss.)  207;  Mc- 

Ti  A  portion  of  the  opinion  is  omitted. 


342  BENEFITS   UNDER   CONTRACT   PARTIALLY   PERFORMED  (Ch.  3 

Gowen  V.  West,  7  Mo.  569,  38  Am.  Dec.  468;  Rhodes'  Adm'r  v.  Storr, 
7  Ala.  346;  Dougherty  v.  Goggin,  1  J.  J.  Marsh.  (Ky.)  374;  Bedinger 
V.  Whittamore,  2  J.  J.  Marsh.  (Ky.)  563.  In  several  of  the  cases  above 
cited,  the  facts  are  almost  identical  with  those  of  the  case  at  bar.  All 
the  cases  agree  that  if  the  party  receiving  the  money  refuses  to  per- 
form the  agreement,  such  as  it  is,  on  his  part,  the  action  lies.     *     *     * 

But  it  is  contended  by  the  learned  and  ingenious  counsel  for  the 
plaintiff  that  neither  Dowdle  v.  Camp,  nor  Abbott  v.  Draper,  are  au- 
thorities against  the  plaintiff's  right  to  recover,  because  in  each  of  those 
cases  the  plaintiff  was  in  possession  of  the  premises  purchased,  and 
might  have  enforced  a  specific  performance  of  the  agreement  in  a  court 
of  equity.  In  that  respect,  it  is  true,  the  two  cases  above  cited  differ 
from  the  case  here,  although  several  of  the  other  cases  cited  do  not. 
But  I  am  unable  to  perceive  how  that  circumstance  affects  the  principle 
upon  which  the  plaintiff  claims  the  right  to  recover.  The  foundation 
of  his  claim  is  that  the  money  was  paid  without  consideration.  That 
is,  that  having  been  paid  upon  a  promise  made  by  the  defendant  which 
the  law  would  not  compel  him  to  perform,  nor  mulct  him  in  damages 
for  refusing  to  perform,  and  which  was,  in  short,  void  by  statute,  it 
was  paid  without  any  consideration  whatever,  which  the  law  notices  or 
regards.  But  this  condition  of  the  parties  is  not  in  the  least  altered 
by  the  purchaser's  going  into  possession,  so  far  as  the  validity  and 
force  of  the  agreement  is  concerned.  It  is  still  void  by  the  statute  of 
frauds,  notwithstanding  the  possession.  Nothing  is  better  settled  than 
this,  that  part  performance  of  a  parol  contract  void  by  statute,  does 
not  take  it  out  of  the  statute,  or  give  it  any  validity  in  law  as  a  contract. 

To  whatever  extent  either  or  both  of  the  parties  may  have  gone  in 
the  performance  of  such  a  contract,  it  still  remains  of  no  legal  or  bind- 
ing force  in  law,  in  every  stage  up  to  its  full  and  final  performance 
and  execution  by  both.  If  it  is  conceded  that  possession  by  the  plain- 
tiff, in  addition  to  the  payment,  would  have  operated  to  defeat  the 
recovery  of  the  money  paid,  the  whole  ground  of  controversy  is  sur- 
rendered. It  could  make  no  difference  as  regards  the  right  of  action, 
so  far  as  the  question  of  consideration  is  concerned,  whether  the  de- 
fendant had  in  fact  performed  in  part  or  whether  he  was  willing  and 
offered  to  perform.  Besides,  when  the  other  party  is  willing  and  of- 
fers to  perform,  the  question  as  to  whether  the  plaintiff  could  compel 
him  to  do  so  in  case  of  his  refusal,  does  not  arise.  It  is  clear  enough 
that  in  case  of  a  refusal  the  action  lies,  and  the  refusal  is  the  ground 
upon  which  the  action  for  the  recovery  is  based.  Certainly  a  willing- 
ness or  an  offer  to  perform  must  be  regarded  as  placing  the  defendant 
in  as  favorable  a  situation,  as  part  performance,  as  regards  the  action 
at  law. 

Courts  of  equity,  in  decreeing  the  specific  performance  of  such  con- 
tracts, do  not  proceed  upon  the  ground  that  the  contract  has  any  force 
or  validity  in  law,  but  only  that  it  is  binding  in  conscience,  and  its  per- 
formance specifically  is  decreed,  expressly  to  prevent  fraud,  and  for 


Sec.  3)  CONTRACT   WITHIN   STATUTE   OF   FRAUDS  343 

the  very  reason  that  in  law  it  is  of  no  force.  What  courts  of  equity 
might  do,  or  refuse  to  do,  can  have  no  bearing  upon  the  legal  effect 
of  such  a  contract.  The  last  act  or  payment  by  either  party,  or  both, 
short  of  full  performance,  is  as  much  without  consideration  in  law  as 
the  first.  If  the  rules  of  equity  are  to  be  permitted  to  affect  the  legal 
right  of  recovery,  the  defendant  may  safely  invoke  tliem  in  his  behalf 
in  the  present  case.  But  they  are  not;  and  in  determining  the  ques- 
tion here,  in  the  action  at  law,  they  may  as  well  be  laid  entirely  out  of 
view.  It  is  by  no  means  a  universal  rule  that  money  paid,  without  a 
consideration  good  in  law,  may  be  recovered  back.  There  are  several 
exceptions  to  it.  And  I  take  this  to  be  one  which  is  well  established 
by  numerous  adjudications. 

The  contract  here  upon  which  the  money  was  paid,  although  it  was 
so  far  void  that  the  law  would  lend  no  aid  in  enforcing  it,  was  not 
contrary  to  law.  It  was  neither  immoral  nor  illegal.  It  was  one  which 
the  parties  had  a  right  to  make  and  carry  out.  There  was  no  fraud  or 
mistake  of  facts.  The  money  was  voluntarily  paid  by  the  plaintiff, 
upon  a  promise  made  by  the  defendant,  which  the  former  knew  at  the 
time  he  could  not  oblige  the  latter  to  perform,  but  which  promise  nev- 
ertheless he  agreed  to  accept  as  a  sufficient  consideration  for  the  money 
parted  with.  The  money  was  not  received  by  the  defendant  as  a  loan, 
but  as  a  payment.  It  was  not  received  to  the  plaintiff's  use.  And  as 
long  as  the  defendant  is  willing  to  do  what  he  agreed  to  do,  in  con- 
sideration of  the  payment,  the  law  will  not  presume  any  promise  to 
repay  it,  but  will  leave  the  parties  to  stand  where  they  voluntarily  plac- 
ed themselves  by  their  arrangement,  until  the  defendant  refuses  to  car- 
ry it  out.  Cases  of  great  hardship  are  suggested  as  a  reason  for  the 
adoption  of  the  rule  contended  for  by  the  plaintiff's  counsel.  One  of 
which  is,  that  otherwise  the  purchaser  under  such  a  contract  might  go 
on  making  payments  until  the  last ;  and  although  satisfied  his  bargain 
is  not  an  advantageous  one,  yet  bound  to  make  his  payments  or  lose 
what  he  has  paid,  while  the  other  party  all  this  time  is  at  perfect  lib- 
erty to  repudiate  the  arrangement,  and  may  do  so  at  the  last  moment, 
to  the  serious  injury  of  the  purchaser.  And  it  is  asked  if  it  is  right  to 
give  one  party  such  an  advantage  over  the  other?  It  would  be  easy 
to  suggest  cases  of  hardship  on  the  other  side,  if  the  right  to  recover 
in  any  case  were  to  be  controlled  by  any  such  considerations.  Take 
the  case  at  bar,  for  an  example.  The  evidence  shows  that  when  the 
plaintiff  entered  into  the  arrangement  with  the  defendant  and  made 
the  payment,  the  latter  was  engaged  in  putting  in  a  crop  of  wheat. 
That  the  plaintiff  requested  the  defendant  to  suspend  operations,  as  he 
would  want  to  put  the  land  to  some  other  use,  and  that  the  defendant 
■did  suspend,  and  waited,  expecting  the  plaintiff  to  fulfill  his  engagement, 
until  it  was  too  late  to  put  in  his  crop ;  in  consequence  of  which  he  was 
injured  to  the  amount  of  over  $100. 

But  suppose  the  whole  purchase  price  had  been  paid,  and  the  de- 
fendant, in  the  confident  expectation  of  the  plaintiff's  acceptance  of 


344  BENEFITS   UNDER   CONTRACT   PARTIALLY   PERFORMED  (Ch.  3 

the  title,  had  gone  and  purchased  another  farm  with  the  money,  and 
involved  himself  in  liabilities  which  would  be  utterly  ruinous  should 
the  other  party  be  allowed  to  repudiate  and  recover  back  the  money. 
It  may  be  asked,  would  it  be  right  to  allow  him  to  do  so?  It  is  suffi- 
ciently obvious,  however,  that  neither  the  plaintiff's  right  to  recover 
back  the  money,  nor  the  defendant's  right  to  retain  it,  can  rest  in,  or 
derive  any  aid  from,  such  considerations  as  these.  The  principle 
which  governs  is  more  fixed  and  stable.  It  is  clear  that,  by  the  rules 
of  equity,  the  plaintiff  could  not  recover  until  he  had  first  made  the 
defendant  whole  for  the  damage  he  had  occasioned  by  the  breach  of 
his  engagement,  or  offered  to  do  so.  And  the  law  will  not,  I  think, 
aid  the  party  thus  in  the  wrong,  by  presuming  a  promise  of  repay-- 
ment,  in  his  favor,  until  the  other  party  shall  refuse  to  go  on  and  carry 
out  the  agreement  upon  which  the  money  was  paid.  The  rule  which  I 
suppose  to  be  established,  seems  to  me  to  be  one  founded  in  reason 
and  good  sense,  which  ought  to  be  upheld.  And  I  regard  it  as  being 
too  well  settled  upon  authority  to  be  departed  from,  except  upon  the 
most  cogent  reasons,  and  from  the  clearest  convictions  of  its  unsound- 
ness. 

I  am  of  opinion,  therefore,  that  the  judgment  of  tlie  county  court 
and  that  of  the  justice  should  be  reversed.^ ^ 

T2  In  Thomas  v.  Brown  (1S7G)  1  Q.  B.  D.  714,  722,  Mellor,  J.,  said :  "Now,  is 
there  anything  unconscientious  in  the  defendant  lieepiug  this  money?  I  can 
see  nothing.  The  brealiing  off  of  the  agreement  was  not  in  any  sense  the  fault 
of  the  vendor,  lie  was  always  ready  and  willing  to  complete  the  purchase 
and  execute  a  convej'ance,  but  the  vendee  chooses  to  set  up  this  question 
about  the  Statute  of  Frauds,  and  to  say,  'Although  I  can  have  the  contract 
performed  if  I  please,  I  repudiate  it.'  Under  these  circumstances,  I  think  it 
would  be  quite  monstrous  if  the  plaintiff  could  recover,  and  I  am  glad  to  think 
that  the  authorities  are  all  opposed  to  her  claim." 

In  Lane  v.  Shackford  (1830)  5  N.  11.  130,  plaintiff  paid  money  and  rendered 
services  in  return  for  defendant's  oral  promise  to  convey  land.  Tlie  court 
said:  "We  are  of  the  opinion  that  the  plaintiff"  is  not  at  liberty  to  treat  the 
contract  for  the  sale  of  land  in  this  case  as  void,  unless  the  defendant  has 
refused,  or  disabled  himself,  to  perform  it.  If  one  man  contracts  with  an- 
other to  perform  labor,  and  receive  as  a  compensation  the  conveyance  of  a 
particular  tract  of  land,  although  the  contract  to  convey  the  land  is  not  a 
proper  foundation  for  an  action,  yet  still  connnon  honesty  and  fair  dealing 
require  that  he  shall  not  be  at  liberty  to  refuse  the  land,  and  demand  money, 
until  the  other  party  has  refused  to  execute  the  contract." 

In  Shaw  V.  Shaw  (1S.34)  G  Vt.  C9,  plaintiff  contracted  to  support  defendant, 
her  mother-in-law,  for  life  in  consideration  of  an  oi"al  promise  to  convey  cer- 
tain land  to  plaintiff'.  After  part  performance  plaintiff'  repudiated  the  con- 
tract and  brought  action  to  recover  the  value  of  the  support  furnished.  In 
holding  for  defendant  the  court  said:  "It  is  urged  for  the  plaintiff,  that  this 
was  a  contract  for  the  sale  of  land,  or  an  interest  therein,  and  void  under 
the  statute,  not  bindiixg  on  the  defendant,  and  therefore,  for  want  of  reciproc- 
ity, not  binding  on  the  plaintiff' ;  and  it  is  therefore  concluded  tlie  plaintiff 
is  entitled  to  recover  for  tlie  support  rendered.  The  statute  does  not  declare 
such  parol  contracts  void.  It  only  provides  that  no  action  shall  be  maintain- 
ed thei'eon,  and  in  this  case  the  action  is  not  on  the  contract — it  is  tlie  de- 
fence which  is  thereon.  The  statute  applies  only  to  executory  contracts,  not 
to  those  In  whole  or  in  material  part  executed.  Therefore,  when  one  party 
has  partly  performed  under  such  a  contract,  he  cannot  recover  for  what  he 
has  done,  unless  the  other  party  insist  upon  the  statute,  and  refuse  to  per- 


Sec.  3)  CONTRACT   WITHIN   STATUTE   OF   FRAUDS  345 

ABBOTT  V.  INSKIP. 
(Supreme  Court  of  Ohio,  1875.     29  Ohio  St.  59.) 

Motion  for  leave  to  file  a  petition  in  error  to  the  District  Court  of 
Brown  county. 

The  plaintiff,  an  infant,  sued  the  defendant  to  recover  the  value  of 
work  and  labor  performed  by  the  plaintiff  for  the  defendant  between 
February,  1871,  and  February,  1875. 

The  defendant  in  his  answer  set  up  that  the  work  and  labor  sued 
for  were  rendered  under  a  verbal  contract  entered  into  between  the 
defendant  and  the  plaintiff's  mother  in  the  year  1864. 

That  at  the  date  of  the  contract  the  plaintiff  was  only  nine  years  old, 
and  was  in  the  custody  and  under  the  control  of  his  mother,  who  was 
entitled  to  his  earnings  and  labor  during  infancy.  By  the  terms  of  the 
contract  the  plaintiff  was  to  live  with  and  serve  the  defendant  until 
he  arrived  at  twenty-one  years  of  age,  in  consideration  of  which  de- 
fendant was  to  provide  hira  with  food,  clothing,  medicine,  and  educa- 
tion, etc.,  and,  upon  arriving  at  age,  was  to  give  him  a  horse,  saddle, 
bridle,  etc.  That  the  defendant  had  performed,  and  was  willing  to 
perform  all  the  conditions  on  his  part,  but  the  plaintiff  without  cause 
had  left  his  home  and  service  before  arriving  at  age. 

A  demurrer  to  the  answer  was  overruled,  and  plaintiff  replied. 

On  the  trial  in  the  court  of  common  pleas  verdict  and  judgment  were 
rendered  for  the  defendant.  This  judgment  was  affirmed  by  the  dis- 
trict court. 

All  the  errors  assigned  may  be  considered  as  arising  on  the  charge 
given  to  the  jury  by  the  court  of  common  pleas,  which  was  as  follows; 
"If  you  find  from  the  evidence  that  the  defendant  entered  into  the 
contract  set  up  in  his  answer,  and  that  the  services  sued  for  were  ren- 
dered to  the  defendant  in  pursuance  of  said  contract,  and  that  the  de- 
fendant has  performed  the  contract  upon  his  part,  and  that  the  plain- 
tiff without  just  cause  left  the  service  of  defendant  without  his  con- 
sent, then  the  plaintiff  can  not  recover,  and  your  verdict  must  be  for 
defendant.  But  if  the  services  were  not  rendered  to  the  defendant, 
under  the  contract  claimed  by  the  defendant,  then  the  plaintiff  is  en- 
titled to  recover  such  sums  as  his  work  and  labor  was  reasonably 
worth,  or  if  the  plaintiff  went  to  live  with  the  defendant  under  the 
contract  claimed  by  defendant,  and  without  cause  was  dismissed  by  tlie 
defendant,  he  may  recover  what  his  work  was  reasonably  worth." 

McIlvaine,  J,     There  is  no  question  made  as  to  tlie  right  of  the 

form.  This  is  too  obviously  just  to  require  comment,  and  to  disregard  it 
would  do  violence  to  every  leadin-^  principle.  The  contract  cannot  be  consid- 
ered void  so  long  as  he,  for  the  piotection  of  vi-hose  rights  the  statute  is  made, 
Is  willing  to  treat  and  consider  the  contract  good." 

See,  also,  to  the  same  effect:  Cobb  v.  Hall  (1857)  29  Vt.  510,  70  Am.  Dea 
432;  Frey  v.  Stangl  (1910)  148  Iowa,  522,  125  N.  W.  8G8;  Perkins  v.  Allnut 
(1913)  47  Mont  13,  130  Pac.  1. 


346      BENEFITS  UNDER  CONTRACT  PARTIALLY  PERFORMED    (Cll.  3 

plaintiff's  mother  to  have  bound  him  by  a  written  contract  duly  exe- 
cuted. 

The  contention  of  the  plaintiff  in  error  is : 

1.  That  the  agreement  set  up  in  the  answer  was  void  under  the  stat- 
ute of  frauds. 

2.  That  the  plaintiff  in  error  was  not  bound  by  it  under  the  statute 
concerning  apprentices  and  servants. 

It  is  true  that  the  agreement  could  not  have  been  performed  within 
a  year  from  the  making  thereof,  and,  therefore,  under  the  statute  of 
frauds,  it  could  not  have  been  enforced  by  action.  It  might,  however, 
have  been  performed  by  the  parties,  and,  when  performed,  the  parties 
would  have  been  bound  by  it ;  or,  if  the  plaintiff  had  performed,  the 
defendant  would  have  been  bound  to  perform  it  on  his  part. 

The  plaintiff  in  his  action  below  relied  on  an  implied  promise,  on  the 
part  of  the  defendant,  that  he  would  pay  the  plaintiff  the  reasonable 
value  of  his  services.  The  express  promise  contained  in  the  agree- 
ment, under  which  the  plaintiff  assumed  to  render  the  service,  excludes 
the  presumption  of  the  implied  promise  relied  on.  The  default  of  a 
defendant,  or  his  refusal  to  go  on  with  a  contract  which  falls  within 
the  statute  of  frauds,  is  an  essential  condition  of  the  right  to  recover 
for  services  rendered  under  it.  It  is  only  in  cases  where  the  defend- 
ant, by  reason  of  his  own  breach  of  such  contract,  is  estopped  from 
setting  it  up  as  a  defense  that  an  action  for  the  value  of  the  work 
done  under  it  can  be  maintained. 

That  the  contract  was  not  executed  in  conformity  to  the  statute 
concerning  apprentices  and  servants  is  not  a  good  reply  to  such  con- 
tract. Such  want  of  conformity  no  doubt  discharged  the  plaintiff  from 
the  duty  of  remaining  with  the  defendant.  But,  upon  his  voluntary 
withdrawal  from  the  service,  it  gave  him  no  right  of  action  to  recover 
for  services  rendered  under  the  contract  for  the  reasons  above  stated. 

Motion  overruled.^' 


KING  V.  WELCOME. 

(Supreme  Judicial  Court  of  Massachusetts,  1855.    5  Gray,  41.) 

Action  of  contract  on  a  quantum  meruit,  for  work  and  labor  done 
by  the  plaintiff  for  the  defendant.  Trial  in  the  court  of  common  pleas. 
The  defence  relied  on  was  that  the  work  and  labor  were  done  under 
an  entire  contract  for  one  year,  and  that  the  plaintiff  wrongfully  left 
the  defendant's  service  before  the  year  expired.  It  appeared  that  the 
contract  was  not  in  writing,  and  bound  the  plaintiff  to  labor  for  one 
year,  to  commence  at  a  future  day,  two  or  three  days  after  the  making 
of  the  contract.  The  plaintiff  contended  that  it  was  invalid,  as  being 
within  the  statute  of  frauds,  and  could  not  be  set  up  in  defence  of  this 

T8  Accord :    Galvin  v.  Prentice  (1871)  45  N.  Y.  1G2,  6  Am.  Rep.  58. 


Sec.  3)  CONTRACT   WITHIN   STATUTE   OF   FRAUPS  347 

action.  Byington,  J.,  so  ruled,  and  directed  a  verdict  for  the  plaintiff, 
and  the  defendant  alleged  exceptions. 

Thomas,  J.  This  was  an  action  of  contract  on  a  quantum  meruit, 
for  labor  done  by  the  plaintiff  for  the  defendant.  The  amount  and 
value  of  the  plaintiff's  services  were  not  disputed,  but  the  defendant 
relied  upon  an  express  contract  by  which  the  plaintiff  was  to  work  for 
an  entire  year,  and  a  breach  of  such  contract  by  wrongfully  leaving 
the  plaintiff's  service  before  the  year  expired.  That  contract  was  not 
in  writing.  By  its  terms,  the  plaintiff  was  to  labor  for  one  year  from  a 
day  future.  The  plaintiff  said  that  contract  was  within  the  statute  of 
frauds,  and  could  not  be  set  up  in  defence  to  the  action.  So  the  court 
ruled. 

Rightly,  we  think ;  though,  in  the  light  of  the  authorities,  the  ques- 
tion is  a  nice  and  difficult  one. 

Upon  the  reason  of  the  thing,  and  looking  at  the  object  and  purpose 
of  the  statute,  the  result  is  clear.  So  far  as  it  concerns  the  prevention 
of  fraud  and  perjury,  the  same  objection  lies  to  the  parol  contract, 
whether  used  for  the  support  of,  or  in  defence  to  an  action.  The  gist 
of  the  matter  is,  that,  in  a  court  of  law,  and  upon  important  interests, 
the  party  shall  not  avail  himself  of  a  contract  resting  in  words  only,  as 
to  which  the  memories  of  men  are  so  imperfect,  and  the  temptations  to 
fraud  and  perjury  so  great. 

The  language  of  our  statute  is,  that  "no  action  shall  be  brought  upon 
any  agreement  that  is  not  to  be  performed  within  one  year  from  the 
making  thereof,"  "unless  the  promise,  contract  or  agreement,  upon 
which  such  action  shall  be  brought,  or  some  memorandum  or  note 
thereof,  shall  be  in  writing,  and  signed  by  the  party  to  be  charged 
therewith,  or  by  some  person  thereunto  by  him  lawfully  autliorized." 
Rev.  St.  1836,  c.  74,  §  1,  cl.  5. 

Looking  at  the  mere  letter  of  the  statute,  the  suggestion  is  obvious, 
that  no  action  is  brought  upon  this  contract.  But  the  defendant  seeks 
to  "charge  the  plaintiff  therewith,"  to  establish  it  by  proof,  to  enforce 
it  in  a  court  of  law,  and  to  avail  himself  of  its  provisions.  And  if  the 
defence  succeeds,  the  plaintiff  is  in  effect  charged  with  and  made  to 
suffer  for  the  breach  of  a  contract  which  he  could  not  enforce,  and 
which  could  not  be  enforced  against  him. 

The  difference,  it  is  clear,  is  not  one  of  principle.  To  illustrate  this, 
let  us  suppose  that  in  the  contract,  which  the  defendant  seeks  to  set 
up  in  defence,  there  had  been  a  provision  for  the  payment  of  the  wages 
stipulated,  by  semi-annual  instalments.  If,  upon  the  expiration  of  the 
six  months,  the  plaintiff  had  brought  an  action  upon  the  contract  to 
recover  the  instalment,  the  action  could  not  be  maintained,  the  statute 
of  frauds  would  be  a  perfect  defence.  This  is  settled  in  the  recent 
case  of  Hill  v.  Hooper,  1  Gray,  131.  But  if,  in  an  action  brought  for 
money  lent  or  goods  furnished  to  himself  or  family,  he  may  avail  him- 
self of  the  instalment,  by  way  of  set-off  or  payment;  the  difference  is 
merely  one  of  form,  and  not  of  substance. 


348      BENEFITS  UNDER  CONTRACT  PARTIALLY  PERFORMED    (Ch.  3 

Still  further,  upon  the  construction  of  the  statute  contended  for  by 
the  defendant,  the  laborer  in  the  contract  stated  would  be  without 
remedy.  For  if  he  brought  his  action  upon  the  contract  for  the  in- 
stalment, the  statute  of  frauds  would  be  a  bar;  if  upon  a  quantum 
meruit,  the  express  contract  to  labor  for  a  year  would  be  a  bar. 

The  sounder  construction  of  the  statute,  we  think,  is  that  a  contract 
within  its  provisions  is  one  which  neither  party  can  enforce  in  a  court 
of  law.  Carrington  v.  Roots,  2  M.  &  W.  248;  Reade  v.  Lamb,  6 
Exch.  130;  Comes  v.  Lamson,  16  Conn.  246.  The  cases  in  the  ex- 
chequer go  farther  than  is  necessary  to  sustain  the  rule  stated.  They 
hold  the  contract,  as  a  contract,  is  void,  because  it  is  a  contract  of 
which  a  party  cannot  avail  himself  in  a  court  of  law.  Upon  this  point 
the  recent  case  of  Leroux  v.  Brown,  12  C.  B.  801,  is  in  conflict  with 
them. 

This  court  has  not  treated  the  contracts  as  absolutely  void.  When 
fully  executed,  they  define  and  measure  the  rights  of  the  parties 
thereto.  And  if  this  contract  had  been  fully  executed,  and  the  plain- 
tiff had  earned  tlie  price  stipulated,  and  had  then  brought  quantum 
meruit  on  the  ground  that  his  services  were  reasonably  worth  more, 
the  contract  so  executed  would  have  been  a  full  answer.  Stone  v. 
Dennison,  13  Pick.  1,  23  Am.  Dec.  654.  But  this  contract  was  not  per- 
formed ;  it  was,  to  a  great  extent,  executory.  For  breach  of  it  by  the 
defendant,  no  action  could  be  maintained  by  the  plaintiff.  Nor,  by 
parity  of  reason,  can  the  plaintiff's  breach  of  it  be  set  up  to  defeat 
his  reasonable  claim  for  services  rendered. 

But  though  a  contract  within  the  statute  of  frauds,  as  a  contract, 
cannot  be  enforced  in  a  court  of  law,  it  may  be  available  for  some 
purposes. 

A  parol  contract  for  the  sale  of  land,  though  not  enforceable  as  a 
contract,  may  operate  as  a  license  to  enter  upon  the  land,  and,  until 
revoked,  be  a  good  answer  to  an  action  of  trespass  by  the  owner. 

So  where  money  has  been  paid  upon  a  parol  contract  for  the  sale 
of  land,  it  cannot  be  recovered  back,  if  the  vendor  is  willing  to  fulfil 
the  contract  on  his  part.  This  is  settled  in  the  recent  case  of  Coughlin 
v.  Knowles,  7  Mete.  57,  39  Am.  Dec.  759,  a  case  which  certainly  re- 
sembles the  one  at  bar,  but  which  may  be  clearly  distinguished  from  it. 
That  action  rests  upon  an  implied  assumpsit.  The  implied  promise 
arises  only  upon  the  failure  of  the  consideration  upon  which  the  money 
was  paid.  The  plaintiff  fails  to  show  any  failure  of  consideration. 
He  shows  the  money  was  paid  upon  a  contract  not  void,  and  which 
the  defendant  is  ready  to  perform.  The  consideration  upon  which  it 
was  paid  exists  unimpaired.  If  the  defendant  had  refused  to  convey, 
or  if,  as  in  the  case  of  Thompson  v.  Gould,  20  Pick.  134,  the  property 
had  been  destroyed  by  fire,  so  that  the  contract  could  not  be  performed 
by  the  vendor,  there  would  be  a  failure  of  consideration,  from  which 
an  implied  promise  would  arise,  and  the  action  could  be  maintained. 

In  the  case  at  bar,  the  plaintiff  shows  services  rendered  for  the  de- 


Sec.  3)  CONTRACT   WITHIN   STATUTE   OF   FRAUDS  349 

fendant,  and  their  reasonable  value.  The  defendant,  admitting  the 
performance  of  the  labor  and  its  value,  says  the  plaintiff  ought  not  to 
recover,  because  he  made  an  entire  contract  for  a  year,  which  he  has 
not  fulfilled.  The  plaintiff  replies,  that  contract  was  for  work  for  a 
year  from  a  day  future;  it  was  within  the  statute  of  frauds;  it  was 
not  in  writing;  it  was  not  executed,  and  cannot  be  used  in  a  court  of 
law,  either  as  the  basis  of  an  action,  or  to  defeat  a  claim  otherwise 
just  and  reasonable. 

In  the  case  of  the  money  paid  upon  a  contract  for  the  sale  of  land, 
the  action  fails  because  no  failure  is  shown  of  the  consideration  from 
which  the  implied  promise  springs. 

In  the  case  at  bar,  the  defence  fails  because  the  contract  upon  which 
the  defendant  relies  is  not  evidenced  as  the  statute  requires  for  its 
v^erification  and  enforcement.  For  it  is  the  whole  contract,  of  which 
the  defendant  seeks  to  avail  himself.  His  defence  is  not  that  as  to  so 
much  as  is  executed,  as  to  so  much  time  as  the  plaintiff  has  labored, 
he  labored  under  the  contract,  and  the  price  stipulated  is  to  govern. 
But  he  relies  upon  the  contract  not  only  so  far  as  it  is  executed,  but 
so  far  as  it  is  still  executory.  He  seeks  first  to  establish  the  parol 
agreement  as  a  valid  subsisting  contract,  and  then  to  charge  the  plain- 
tiff with  a  breach  of  it. 

A  construction  of  the  statute,  which  would  sanction  this  use  of  the 
contract,  would  lose  sight  of  the  obvious  purposes  of  the  statute.  It 
would  adhere  to  the  letter  at  the  expense  of  the  spirit.  It  would  op- 
erate unequally  upon  the  parties.    The  weight  of  authority  is  against  it. 

Exceptions  overruled.''* 

74  Accord:  McGartland  v.  Steward  &  Clark  (1S60)  2  Houst.  (Del.)  277; 
Bernier  v.  Cabot  Manufacturing  Co.  (ISSO)  71  Me.  50G,  36  Ani.  Rep.  343. 

Collins  V.  Thajer  (1874)  74  111.  13^— an  action  by  a  purchaser  of  land  under 
a  parol  contract  to  recover  instalments  paid  by  him  on  the  ground  that  he 
was  thereafter  evicted  by  holder  of  paramount  title — contains  a  dictum  to 
the  same  effect. 

See,  also,  Grace  v.  Gholson  (1914)  159  Ky.  359,  167  S.  W.  420  (vendee  of 
land  under  parol  contract  can  recover  purchase  money  paid,  even  though  de- 
fendant tender  a  conveyance  before  trial). 

In  Riley  v.  Williams  (1878)  123  Mass.  506,  plaintiff  agreed  with  defendant 
by  parol  contract  to  do  certain  work  for  defendant  and  to  accept  in  payment 
therefor  blacksmithing  work  to  a  certain  amount  and  a  conveyance  of  a  build- 
ing lot  to  be  selected  by  plaintiff  from  certain  ones  owned  by  defendant.  The 
plaintiff,  having  completed  the  work  called  for  by  the  contract  brought  suit  in 
assumpsit  for  the  value  of  his  work  and  labor.  The  court  held  that,  if  de- 
fendant was  ready  and  willing  to  convey  the  land  and  to  furnish  the  black- 
smithing  work,  "it  Is  not  for  the  plaintiff  to  object  that  this  special  contract 
was  not  binding  because  it  was  not  in  writing."  Contrast  Koch  v.  Williams 
(1892)  82  Wis.  186,  52  N.  W.  257  (facts  stated  in  note,  page  351,  infra). 


350  BENEFITS  UNDER  CONTRACT  PARTIALLY   PERFORMED         (Ch.  3 

SALB  V.  CAMPBELL. 

(Supreme  Court  of  Wisconsin,  18S6.    65  Wis.  405,  27  N.  W.  45.) 

Appeal  from  the  County  Court  of  Milwaukee  County.  The  case  is 
stated  in  the  opinion. 

Taylor,  J."  This  action  was  brought  by  the  appellant  to  recover 
of  the  respondents  for  the  services  of  his  minor  son,  Joseph  Salb.  The 
complaint  alleges  that  said  Joseph  worked  for  the  respondents  from 
August  1  to  September  15,  1882,  for  the  agreed  price  of  five  dollars 
per  week,  and  that  the  services'  were  reasonably  worth  that  sum ;  that 
he  also  performed  extra  work  during  that  time,  which  was  reasonably 
worth  five  dollars  per  week;  that  the  extra  work  amounted  to  four 
days ;  and  claimed  as  damages,  $36.66.  The  defendant  answered  first 
by  a  general  denial;  and  then  alleged  "that  in  February,  1881,  they 
entered  into  an  agreement  with  the  plaintiff,  which  agreement  was 
sanctioned  and  ratified  by  said  Joseph  Salb,  and  was  as  follows :  Said 
Joseph  Salb  agreed  to  work  for  the  defendants  as  an  apprentice  to 
learn  the  moulder's  trade  for  the  term  of  four  years  from  the  first  of 
February,  1881,  at  and  for  the  agreed  price  of  $3.50  per  week  for  the 
first  year;  $5,  second  year;  $6.50,  third  year;  and  $8,  fourth  year, — 
this  being  an  increase  of  $1.50  each  week  during  the  continuance  of 
the  four  years;  that  plaintiff  has  neglected  and  refused  to  fulfil  his 
said  contract  as  aforesaid,  to  the  damage  of  these  defendants  one  hun- 
dred and  fifty  dollars,  which  damages  defendants  set  up  by  way  of 
counter-claim,  and  demand  judgment  for  $150,  and  costs;  that  plain- 
tiff has  neglected  to  comply  with  the  terms  of  contract,  though  re- 
quested to  do  so  by  the  defendants."  The  only  witnesses  who  were 
sworn  on  the  trial  were  the  plaintiff  and  his  son.  The  county  court, 
on  motion  of  the  defendants,  nonsuited  the  plaintiff,  and  from  the 
judgment  entered  upon  such  nonsuit  the  plaintiff  appeals  to  this 
court.     *     *     * 

To  our  minds  the  evidence  tends  strongly  to  show  that  the  agree- 
ment was  to  work  for  four  years  upon  the  terms  stated  in  the  answer 
of  the  defendants ;  that  the  boy  entered  into  the  employ  of  the  defend- 
ants under  such  agreement ;  and  there  is  no  sufficient  evidence  to  sus- 
tain a  finding  as  a  question  of  law  that  such  agreement  was  changed  at 
the  end  of  the  first  year,  and  that  a  new  agreement  was  then  made  to 
work  one  year  at  five  dollars  per  week.     *     *     * 

As  there  is  no  pretense  that  the  contract  of  hiring  for  four  years  was 
in  writing,  it  is  clear  that  it  was  void  under  the  statute  of  frauds.  Sec- 
tion 2307,  Rev.  St.,  reads  as  follows :  'Tn  the  following  cases  every 
agreement  shall  be  void,  unless  such  agreement,  or  some  note  or  mem- 
orandum thereof  expressing  the  consideration,  be  in  writing  and  sub- 
scribed by  the  party  charged  therewith :    (1)  Every  agreement  that  by 

75  Portions  of  the  opinion  are  omitted. 


Sec.  3)  CONTRACT   WITHIN   STATUTE   OF   FRAUDS  351 

its  terms  is  not  to  be  performed  within  one  year  from  the  making 
thereof." 

The  plaintiff  having  established  the  fact  that  his  son  had  performed 
valuable  services  for  the  defendants,  he  was  entitled  to  recover  what 
such  services  were  reasonably  worth.  There  was  evidence  tending  at 
least  to  show  that  such  services  were  worth  five  dollars  per  week. 
This  made  out  a  case  in  favor  of  the  plaintiff,  and  unless  the  fact  that 
there  was  an  unwritten  agreement  that  his  son  should  labor  for  the  de- 
fendants for  four  years,  and  that  his  son  quit  the  defendants'  employ- 
ment before  that  term  had  expired  without  just  cause,  was  a  defense 
to  his  action,  he  should  have  either  had  a  verdict  in  his  favor  or  the 
court  should  have  submitted  the  question  to  the  jury  whether  there  was 
a  new  agreement  made  by  the  parties  by  which  the  son  was  to  work  for 
the  defendants  for  one  year  at  five  dollars  per  week,  without  regard 
to  the  original  agreement  to  work  for  four  years. 

The  statute  making  the  parol  contract  absolutely  void  furnishes  no 
ground  of  action  in  favor  of  the  plaintiff,  nor  can  it  be  used  by  the  de- 
fendants as  a  basis  upon  which  to  found  a  defense.  The  parties  stand 
in  the  same  relation  to  each  other  as  though  no  express  contract  ex- 
isted between  them.  This  court  long  ago  repudiated  the  rule  laid 
down  by  some  of  the  other  courts  in  this  country  that  although  the  con- 
tract is  made  void  by  statute,  yet,  if  a  party  enters  upon  a  performance 
of  it,  he  cannot  recover  for  the  value  of  his  labor  done  under  it,  unless 
he  performs  the  whole  of  the  void  contract  on  his  part.  We  are  well 
satisfied  with  the  reasons  given  by  this  court  in  the  cases  cited  below 
for  holding  that  a  contract  which  is  declared  void  by  statute  is  no  more 
a  basis  for  a  defense  to  an  action  than  it  is  a  basis  upon  which  to 
found  an  action.  See  Brandeis  v.  Neustadtl,  13  Wis.  142 ;  ^*  Starin 
v.  Newcomb,  13  Wis.  519;  Thomas  v.  Sowards,  25  Wis.  631  ;  North- 
western U.  P.  Co.  v.  Shaw,  37  Wis.  655,  19  Am.  Rep.  781  ;  Clark  v. 
Davidson,  53  Wis.  317-322,  10  N.  W.  384.  In  such  case  the  parties 
must  stand  as  though  no  express  contract  was  made,  and  the  plaintiff 
may  recover  upon  a  quantum  meruit  for  the  work  done  upon  an  im- 
plied promise  of  the  defendants  to  pay  what  the  services  are  reason- 
ably worth.     *     *     * 

We  think  the  county  court  erred  in  nonsuiting  the  plaintiff.  The 
judgment  of  the  circuit  court  is  reversed,  and  the  cause  is  remanded 
for  a  new  trial.^^ 

TBThis  case  contains  an  elaborate  discussion  of  the  difference  between  tlie 
Eniglisli  Statute  of  Frauds  and  the  Wisconsin  one. 

7  7  Accord :  Scott  v.  Bush  (1S73)  26  Mich.  418,  12  Am.  Rep.  311.  (Money  paid 
upon  an  oral  contract  to  purchase  land  may  be  recovered,  though  defendant  is 
ready  and  willing  to  convey  the  land.)  Nelson  v.  Shelby  Mfg.  &  Imp.  Co. 
(1892)  96  Ala.  515,  11  South.  695,  38  Am.  St.  Rep.  116.  (Same  facts  as  in 
preceding  case.)  Koch  v.  Williams  (1892)  82  Wis.  186,  52  N.  W.  257.  (Oral 
contract  providing  for  performance  of  ser\'ices  by  plaintiff  to  be  compensated 
for  by  a  conveyance  of  land  by  defendant ;  held,  that  after  performance  of 
such  services  by  plaintiff  he  may  recover  the  value  thereof  despite  defend- 
ant's willingness  to  convey  the  land.) 


352  BENEFITS   UNDER  CONTKACT  PARTIALLY  PERFORMED         (Ch.  3 

SECTION  4.— REPUDIATION  OR  SUBSTANTIAL  BREACH 

I.  By  Defendant 


TOWERS  V.  BARRETT. 

(Court  of  King's  Bench,  1786.     1  Term  R.  133.) 

Action  for  money  had  and  received,  and  for  money  paid,  laid  out, 
and  expended. 

On  the  trial  of  this  cause  before  Lord  Mansfield,  at  the  sittings  at 
Westminster  after  last  Michaelmas  term,  it  appeared  that  this  suit  was 
instituted  by  the  plaintiff  to  recover  ten  guineas,  w^hich  he  had  paid  to 
the  defendant  for  a  one-horse  chaise  and  harness,  on  condition  to  be 
returned  in  case  the  plaintiff's  wiie  should  not  approve  of  it,  paying 
3s.  6d.  per  diem  for  the  hire  of  it.  This  contract  was  made  by  the  de- 
fendant's servant,  but  his  master  did  not  object  to  it  at  the  time.  The 
plaintiff's  wife  not  approving  of  the  chaise,  it  was  sent  back  at  the  ex- 
piration of  three  days,  and  left  on  defendant's  premises,  without  any 
consent  on  his  part  to  receive  it:  the  hire  of  3s.  6d.  per  diem  was  ten- 
dered at  the  same  time,  which  the  defendant  refused,  as  well  as  to  re- 
turn the  money. 

After  a  verdict  had  been  given  for  the  plaintiff,  Sir  Thomas  Daven- 
port obtained  a  rule  to  shew  cause  why  a  non-suit  should  not  be  en- 
tered on  the  ground  that  this  action  for  money  had  and  received  would 
not  lie ;  but  that  it  should  have  been  on  the  special  contract. 

Lord  Mansfield,  C.  J.  I  am  a  great  friend  to  the  action  for  money 
had  and  received ;  it  is  a  very  beneficial  action,  and  founded  on  princi- 
ples of  eternal  justice. 

In  support  of  that  action,  I  said  in  the  case  of  Weston  v.  Downes, 
[1  Doug.  23],  that  I  would  guard  against  all  inconveniences  which 
might  arise  from  it,  particularly  a  surprise  on  the  defendant ;  as  where 
the  demand  arises  on  a  special  contract,  it  should  be  put  on  the  record. 
But  I  have  gone  farther  than  that ;  for  if  the  parties  come  to  trial  on 
another  ground,  though  tliere  happen  to  be  a  general  count  for  money 
had  and  received,  I  never  suffer  tlie  defendant  to  be  surprised  by  it, 
unless  he  has  had  notice  from  the  plaintiff  that  he  means  to  rely  on  that 
as  well  as  the  other  ground. 

But  consistently  with  that  guard,  I  do  not  think  that  the  action  can 
be  too  much  encouraged.  Here  there  is  no  pretence  of  a  surprise  on 
the  defendant;  tliere  was  no  other  question  to  be  tried.  The  defendant 
knew  the  whole  of  the  matter  in  dispute  as  well  as  the  plaintiff.  On 
what  ground  can  it  be  said  that  this  is  not  money  paid  to  the  plaintiff's 
use?  The  defendant  has  got  his  chaise  again,  and,  notwithstanding 
that  he  keeps  the  money. 


Sec.  4)  REPUDIATION  OR  SUBSTANTIAL  BREACH  u53 

The  case  was  well  put  by  Mr.  Justice  Ashhurst  in  Weston  v.  Downes, 
and  I  think  this  is  exactly  like  that.  I  was  of  opinion  at  the  trial  that 
this  action  would  lie ;  and  I  still  continue  of  that  opinion. 

Ashhurst,  J.^®  *  *  *  This  is  like  the  common  cases  where  ei- 
ther party  puts  an  end  to  a  conditional  agreement.  Here  the  condition 
was  to  return  the  chaise  if  not  approved  of ;  therefore,  the  moment  it 
was  returned,  the  contract  was  at  an  end,  and  the  defendant  held  the 
money  against  conscience  and  without  consideration. 

BuivivER,  J.  On  the  very  principle  in  Weston  v.  Downes,  and  Power 
V.  Wells  [Cowp.  818],  which  determined  that  the  action  for  money  had 
and  received  would  not  lie  in  those  cases,  it  is  clear  that  this  action  will 
lie. 

It  is  admitted  that  if  the  defendant  had  actually  accepted  the  chaise, 
the  action  would  lie :  but  it  has  been  contended  that  he  did  not  receive 
it.  Then  let  us  see  whether  there  be  not  something  equivalent  to  an 
acceptance?  I  think  there  is,  from  the  terms  of  the  contract.  There 
was  nothing  more  to  be  done  by  the  defendants ;  for  he  left  it  in  the 
power  of  the  plaintiff  to  put  an  end  to  the  contract.  Here  it  was  not 
in  his  option  to  refuse  the  chaise  when  it  was  offered  to  him :  he  was 
bound  to  receive  it;  and  therefore  it  is  tlie  same  as  if  he  had  accept- 
ed it. 

The  distinction  between  those  cases  where  the  contract  is  open,  and 
where  it  is  not  so,  is  this;  if  the  contract  be  rescinded,  either,  as  in  this 
case,  by  the  original  terms  of  the  contract,  where  no  act  remains  to  be 
done  by  the  defendant  himself,  or  by  a  subsequent  assent  by  the  de- 
fendant, the  plaintiff  is  entitled  to  recover  back  his  whole  money ;  and 
then  an  action  for  money  had  and  received  will  lie.  But  if  the  contract 
be  open,  the  plaintiff's  demand  is  not  for  the  whole  sum,  but  for  dam- 
ages arising  out  of  that  contract. 

In  a  late  case  before  me  on  a  warranty  of  a  pair  of  horses  to  Dr. 
Compton  that  they  were  five  years  old,  when  in  fact  they  turned  out  to 
be  only  four,  and  they  were  not  returned  within  a  certain  time,  I  held 
that  if  the  plaintiff  would  rescind  the  contract  entirely  he  must  do  it 
within  a  reasonable  time,  and  that  as  he  had  not  rescinded  the  contract, 
he  could  only  recover  damages ;  and  then  the  question  was,  what  was 
the  difference  of  the  value  of  horses  of  four  or  five  years  old? 

So  that  the  difference  in  cases  of  this  kind  is  this ;  where  the  plain- 
tiff is  entitled  to  recover  his  whole  money,  he  must  shew  that  the  con- 
tract is  at  an  end :  but  if  it  continue  open,  he  can  only  recover  damages, 
and  then  he  must  state  the  special  contract  and  the  breach  of  it. 

Rule  discharged.'^* 

7  8  The  concurring  opinion  of  Willes,  J.,  and  a  portion  of  the  opinion  of 
Ashhurst,  J.,  are  omitted. 

79  Accord:    Gillet  v.  Maynard  (1809)  5  Johns.  85,  4  Am.  Dec.  329,  where  the 

court  said:   "The  case  of  Towers  v.  Barrett,  1  Term  Rep.  1.'53,  fully  establishos 

the  principle  that  assumpsit  for  money  had  and  received  lies  to  recover  back 

money  paid  on  a  contract  which  is  put  an  end  to,  either  where,  by  the  terivis 

.Thurs.Quasi  Cont. — 23 


354      BENEFITS  UNDER  CONTRACT  PARTIALLY  PERFORMED    (Ch.  3 

SNOW  V.  PRESCOTT. 

(Superior  Court  of  Judicature  of  New  Hampshire,  1842.     12  N.  H.  535.) 

Assumpsit,  for  goods  sold  and  delivered,  including,  among  other 
things,  an  anvil,  the  alleged  price  of  which  was  $11 ;  and  a  plough,  the 
price  of  which  was  averred  to  be  $3.oO. 

Upon  the  trial,  it  was  proved  that  in  the  summer  of  the  year  1838 
the  defendant  was  the  holder  of  a  promissory  note  against  the  plain- 
tiff. There  was  evidence  on  the  part  of  the  plaintiff  tending  to  show 
that  he  sold  and  delivered  the  plough  and  the  anvil  to  the  defendant, 
who  agreed  to  indorse  the  price  of  them  upon  the  note.  The  defend- 
ant afterwards  brought  an  action,  and  recovered  judgment  on  the  note 
by  default.  The  price  of  the  articles  was  not  indorsed  upon  the  note, 
nor  accounted  for  by  the  defendant,  but  execution  issued  for  the  judg- 
ment and  costs,  the  amount  of  which  the  plaintiff  afterwards  paid  the 
defendant. 

The  court  instructed  the  jury,  that  if  the  plaintiff  sold  and  delivered 
the  articles  to  the  defendant,  who  agreed  to  indorse  their  price  upon 
the  note,  but  omitted  to  do  so,  and  the  plaintiff  paid  the  sum  mentioned 
in  the  note,  he  was  entitled  to  recover  the  price  of  the  articles,  in  this 
action. 

The  jury  returned  a  verdict  for  the  plaintiff,  which  the  defendant 
moved  to  set  aside,  on  account  of  the  instruction  of  the  court. 

Gilchrist,  J.^"  The  case  of  Tilton  v.  Gordon,  1  N.  H.  33,  presents 
a  state  of  facts  similar  to  that  in  the  case  before  us;  and  if  the  judg- 
ment there  were  correct,  it  should  govern  the  decision  of  this  case. 
The  soundness  of  that  judgment,  however,  has  been  often  questioned 
at  the  bar,  and  by  the  court  also,  in  the  case  of  Fuller  v.  Little,  7  N.  H. 
535.  It  was  pronounced  by  Mr.  Justice  Bell,  and  in  the  case  of  Far- 
mer V.  Stewart,  2  N.  li.  101,  was  said  by  Mr.  Justice  Woodbury  to  be 

of  the  contract,  it  is  left  in  the  plaintiff's  power  to  rescintl  it.  by  any  act,  and 
he  does  it,  or  where  the  defendant  afterwards  assents  to  its  being  rescinded. 
I  see  no  gronnd,  tlierefore,  upon  wliic-h  the  defendant  can  resist  a  reimburse- 
ment of  the  sums  he  has  received  as  a  payment  upon  the  contrac-t  wliich  he  lias 
himself  put  an  end  to." 

See,  also.  Earl  of  Lincoln  v.  Topcliff  (1508)  Cro.  Eliz.  044,  page  12,  supra; 
Pierce  v.  Staub  (1906)  78  Conn.  4^9,  G2  Atl.  7G0,  30  L.  R.  A.  (N.  S.)  785,  112 
Am.  St.  Rep.  103. 

Extent  of  Breach  by  Defendant  Entitling  Plaintiff  to  Rescind. — 
The  authorities  are  not  fully  agreed  as  to  what  conduct  on  the  part  of  one 
party  to  a  contract  entitles  the  other  party  thereto  to  elect  to  treat  the  agri'ee- 
ment  as  rescinded.  iVn  express  mutual  agreement  to  rescind  is.  of  course, 
every\vhere  sufficient.  Otherwise  there  must  be,  according  to  the  English 
doctrine,  such  conduct  on  defendant's  part  as  amounts  to  a  repudiation  of  the 
contract ;  that  is,  either  a  refusal  to  perform,  or  an  act  rendering  performance 
Impossible.  On  the  other  hand,  the  prevailing  American  rule  is  that  any 
breach  on  defendant's  part  which  is  so  substantial  as  to  constitute  a  defense 
to  an  action  brought  by  the  party  in  default  for  a  refusal  to  proceed  with  the 
contract,  -justifies  the  plaintiff  in  rescinding  the  agreement.  For  a  discus- 
sion of  the  two  doctrines,  with  citations  of  the  authorities,  see  Williston's 
Wald's  Pollock  on  Contracts,  pp.  334-342 ;   Woodward,  Quasi  Contracts,  §  263. 

«•  Portions  of  the  opinion  are  omitted. 


Sec.  4)         REPUDIATION  OR  SUBSTANTIAL  BREACH  355 

"supported  by  principle  as  well  as  the  authorities  there  collected." 
From  the  opinions  of  two  so  eminent  lawyers,  we  should  not  hastily 
dissent,  but  a  careful  consideration  of  the  case  has  led  us  to  a  different 
result. 

In  that  case,  Tilton  delivered  Gordon  a  yoke  of  oxen,  in  part  pay- 
ment of  a  note,  and  Gordon  promised  to  indorse  their  price  on  the 
note.  This  he  neglected  to  do,  and  brought  an  action  on  the  note,  in 
which  he  recovered  judgment  by  default,  for  the  sum  for  which  the 
note  was  given.  Tilton  then  brought  an  action  to  recover  the  price  of 
the  oxen,  stating  these  facts  in  his  declaration.  The  court  held  that  if 
the  action  could  be  supported  at  all,  it  must  be  on  the  ground  that 
Gordon  recovered  more  than  was  due  him  in  the  action  on  the  note; 
and  that  he  could  not  recover  on  this  ground,  because  a  judgment  re- 
covered in  a  court  of  competent  jurisdiction,  while  unreversed,  is 
conclusive  as  to  the  subject  matter  of  it,  to  every  intent  and  purpose, 
and  cannot  be  re-examined  in  a  new  action  founded  on  evidence  which 
would  have  constituted  a  defence  to  the  original  suit.  The  general 
principle  thus  enunciated  by  the  court  may  be  entirely  correct,  and  it 
may  be  admitted  to  be  in  accordance  with  the  authorities.  Still,  the 
question  arises,  whether  the  plaintiff,  in  order  to  make  out  his  case, 
must  necessarily  have  re-examined  the  merits  of  the  original  judg- 
ment. If  this  were  unnecessary,  the  principle  on  which  the  judgment 
was  rendered,  although  sound  in  the  abstract,  was  incorrectly  applied 
to  the  circumstances  of  the  case.  If  the  plaintiff  could  not  have  re- 
covered without  enquiring  into  the  merits  of  the  case,  which  had  been 
settled  by  the  judgment,  then  the  decision  was  right,  and  the  plaintiff 
in  the  action  before  us  cannot  recover.     *     *     * 

But  the  plaintiff  might  have  been  permitted  to  recover  without  a 
violation  of  any  part  of  the  doctrine  of  the  court.  The  substance  of 
his  case  was,  that  he  had  delivered  the  oxen  to  the  defendant  in  part 
payment  of  the  note ;  that  the  defendant  agreed  to  indorse  their  price 
upon  the  note;  that  he  failed  to  do  so,  and  thereby  did  not  receive  them 
as  payment,  and  that  consequently  he  was  then  bound  to  pay  him  their 
price.  In  this  view  of  the  case,  it  was  perfectly  immaterial  whether  a 
judgment  had  or  had  not  been  rendered  in  a  suit  on  the  note.  The 
plaintiff's  cause  of  action,  and  right  to  recover  the  price,  depended,  not 
on  the  rendition  of  the  judgment,  but  upon  the  breach  of  the  defend- 
ant's contract.  The  note  was  accessible  to  the  parties,  as  evidence  of 
this  collateral  matter,  even  after  the  judgment;  and,  on  being  produced, 
an  inspection  of  it  would  have  shown  that  the  defendant's  contract 
had  been  broken.  But  no  evidence  need  have  been  given  of  the  judg- 
ment ;  and,  not  only  would  no  enquiry  have  been  necessary  into  its  mer- 
its, but  it  would  have  been  immaterial  whether  such  a  judgment  ex- 
isted.    *     *     * 

We  have  endeavored  to  explain  the  reasons  why,  in  our  opinion,  the 
merits  of  the  judgment  upon  the  note  were  not  involved  in  the  suit  to 
recover  the  price  of  the  oxen.     If  these  be  sound,  it  will  follow  that 


356  BENEFITS   UNDER   CONTRACT   PARTIALLY   PERFORMED  (Ch.  3 

the  ground  on  which  the  judgment  was  placed,  was  untenable.  But 
there  is  another  position,  entitling  the  plaintiff  to  recover,  which,  per- 
haps, is  but  an  extension  of  the  views  we  have  taken,  and  which  is 
stated  in  the  case  of  Fuller  v.  Little,  7  N.  H.  535,  by  Mr.  Justice  Par- 
ker. It  is  substantially  this :  That  a  contract  may  be  rescinded  with- 
out proof  of  an  express  agreement  to  rescind  it;  that  one  of  tlie  par- 
ties may  sometimes  consider  the  act  of  the  other  as  a  rescission;  and 
that  when  Gordon  took  his  judgment  for  the  sum  mentioned  in  the 
note,  without  deduction,  Tilton  might  elect  to  consider  that  as  a  re- 
scission of  the  agreement  to  receive  the  oxen  in  part  payment.  'Gordon 
would  then  have  owed  Tilton  the  price  of  the  oxen,  which  might  have 
been  recovered  without  enquiring  into  the  merits  of  the  judgment. 
We  are,  therefore,  of  opinion  that  the  principle  stated  by  the  court  in 
Tilton  V.  Gordon,  as  the  foundation  of  their  judgment,  was  incor- 
rectly applied  to  the  facts  of  that  case,  and  that  the  plaintiff  was  enti- 
tled to  recover.  Consequently,  the  plaintiff  in  this  case  is  entitled  to 
recover.  He  sold  and  delivered  the  plough  and  anvil  to  the  defendant, 
who  agreed  to  indorse  their  price  upon  the  note.  This  agreement  he 
failed  to  perform,  and  the  plaintiff  may  consider  this  failure  as  a  re- 
scission of  the  agreement.  The  defendant,  then,  has  received  property 
of  the  plaintiff  for  which  he  has  not  paid.  He  cannot  avail  himself  of 
his  omission  to  make  the  indorsement,  as  a  defence  to  this  suit,  and 
the  plaintiff  may  now  recover  the  price  of  the  property,  in  this  action. 
Judgment  on  tlie  verdict.*^ 


MIZELL  V.  WATSON. 

(Supreme  Court  of  Florida,  Division  B,  1909.     57  Fla.  Ill,  49  South.  149.) 

Error  to  Circuit  Court,  Jackson  County;  J.  Emmet  Wolfe,  Judge. 
Action  by  I.  H.  &  W.  L.  Watson  against  C.  F.  &  A.  C.  Mizell.    Judg- 
ment for  plaintiffs,  and  defendants  bring  error. 

Parkhill,  J.^^     The  defendants  in  error  sued  the  plaintiffs  in  er- 

81  "In  this  case  the  plaintiff  purchased  of  the  defendant  two  plows;  and 
in  an  adjustment  of  accounts  between  the  parties  tlie  value  of  the  plows  was 
allowed  to  the  defendant ;  yet  "he  has  refused  to  deliver  the  plows,  and  has 
converted  them  to  his  own  use.  It  is  objected,  by  the  defendant,  that  this 
action  cannot  be  maintained  upon  these  facts.  But  we  think  otlierwise.  It 
seems  to  us,  that  when  the  defendant  refused  to  deliver  the  plows,  the  plain- 
tiff had  a  right  to  consider  the  conti'act  as  rescinded,  and  to  recover  back  the 
price  he  had  paid  for  the  plows.  5  Johns.  (N.  Y.)  S5,  4  Am.  Dec.  329,  Gillet  v. 
Maynard ;  12  Johns.  (N.  Y.)  274,  7  Am.  Dec.  317,  Raymond  v.  Bearnard.  And 
It  seems  to  us,  that  this  plaintiff  may  recover  upon  his  count,  for  money  had 
and  received,  the  price  of  tlie  plows.  It  is  not  necessary,  in  order  to  support 
that  count,  that  the  defendant  should  have  received  money.  It  is  enough, 
that  he  received  money's  worth.  2  N.  H.  333,  Willie  v.  Green."  Danforth 
V.  Dewey  (1824)  3  N.  H.  79. 

«2  Portions  of  the  opinion,  stating  the  plaintiff's  first  and  third  counts  (which 
were  eliminated  by  the  court),  and  discussing  a  point  of  pleading,  are  omitted. 


Sec.  4)  REPUDIATION  OR  SUBSTANTIAL  BREACH  357 

ror  in  the  circuit  court  for  Jackson  county,  as  set  forth  in  the  declara- 
tion as  follows : 

***         ********* 

"(2)  Plaintiffs  further  sue  the  defendants  for  that  whereas,  the  said 
defendants,  by  their  agents,  sold  the  plaintiffs  a  certain  horse  for  a 
price  and  value  of  $180.00,  and  received  as  part  payment  on  said 
horse  $120.00  in  cash,  and  at  the  time  they  so  received  said  amount 
they  represented  to  these  plaintiffs  that  the  said  horse  was  sound  physi- 
cally and  able  to  do  the  plaintiffs'  work,  when  in  truth  and  in  fact  the 
said  horse  was  unsound  and  so  afflicted  and  lame,  and  these  defects 
could  not  then,  at  the  time  of  the  said  transaction,  be  ascertained  by  the 
plaintiffs,  and  said  horse  was  unfit  for  the  plaintiffs'  use  and  not  serv- 
iceable, and  the  plaintiffs  delivered  said  horse  back  to  the  said  defend- 
ants, who  accepted  the  same  back,  but  the  said  defendants  failed  and 
refused  to  return  to  the  plaintiffs  the  said  $120.00  which  they  had  ob- 
tained from  the  plaintiffs  herein  by  reason  of  the  agents'  failure  of 
warranty  in  said  horse  and  by  reason  of  its  failure  of  guaranty  of  said 
horse.    Wherefore  the  plaintiffs  sustained  a  loss  at  the  hands  of  the 

defendants  in  the  sum  of  $120.00. 

****         ******** 

"All  of  which  amounts  are  long  past  due  and  unpaid.  Wherefore 
plaintiffs  sue  and  allege  their  damages  in  the  sum  of  $500.00." 

The  defendants  filed  a  plea  of  not  guilty,  upon  which  issue  was  join- 
ed. The  jury  rendered  a  verdict  in  favor  of  the  plaintiffs  for  $121, 
upon  which  final  judgment  was  rendered.  The  plaintiffs  entered  a 
remittitur  for  $1,  and  the  defendants  sued  out  a  writ  of  error. 

The  court  limited  recovery  to  the  second  count  of  the  declaration,  in 
a  charge  to  the  jury  as  follows:  "Now  the  court  charges  you  that  if 
the  plaintiffs  bought  a  horse  from  the  defendants,  and  paid  $120  in 
cash,  and  that  at  the  time  the  trade  was  made  the  defendants  or  the 
defendants'  authorized  agents  represented  that  the  horse  was  physically 
sound  and  fit  to  do  certain  work,  and  that  such  representations  were 
believed  by  plaintiffs,  and  induced  the  plaintiffs  to  purchase  the  horse 
and  part  with  the  money,  and  such  representations  were  false  and  un- 
true, and  the  defendants  or  defendants'  agents  knew  at  the  time  they 
were  false  and  untrue,  and  made  them  to  induce  the  purchase  of  the 
horse,  then  the  plaintiffs,  upon  the  discovery  of  the  defective  condition 
of  said  horse,  if  any  existed,  would  have  a  right  to  rescind  the  con- 
tract, provided  they  rescinded  it  in  reasonable  time,  and  demand  back 
the  money  they,  if  any,  had  paid ;  and  if  you  find  from  the  evidence 
these  were  the  facts,  then  the  plaintiffs  would  be  entitled  to  recover  un- 
der the  second  count  of  the  declaration,  and  the  amount  of  money,  if 
any,  which  they  paid  to  defendants  at  the  time  they  purchased  the 
horse.    That  is  practically  all  the  law  there  is  to  this  case." 

The  errors  assigned  complain  of  this  instruction  and  the  insufficiency 
of  the  evidence  to  support  the  verdict.     *     *     * 

It  appears  from  the  evidence  that  the  plaintiffs,  as  one  transaction, 


358  BENEFITS  UNDER  CONTRACT   PARTIALLY   PERFORMED         (Ch.  3 

bought  of  the  defendants  a  horse  and  bugg-y,  paying  therefor  the  sum 
of  $120  cash  and  giving  their  note  and  contract  for  $138,  the  balance 
due,  as  follows : 
"$138.00.  Chipley,  Florida,  March  13,  1907. 

"On  or  before  the  first  day  of  October,  1907,  we  promise  to  pay  to 
C.  F.  &  A.  C.  Mizell,  or  order,  one  hundred  and  thirty-eight  dollars  at 
their  office  in  Chipley,  Florida,  for  value  received,  with  interest  at  8 
per  cent,  from  date  until  paid,  together  with  reasonable  attorney's  fees 
and  all  other  expense  incident  to  the  collection  of  the  same,  whether 
by  suit  or  otherwise,  including  recording  fees. 

"This  note  is  given  for  the  purchase  price  of  one  bay  mare  about 
6  years  old,  also  one  J.  G.  Smith  &  Son  top  buggy,  the  title  to  which 
property  shall  remain  in  C.  F.  &  A.  C.  Mizell  until  this  note  is  fully 
paid,  and  said  C.  F.  &  A.  C.  Mizell  may,  either  in  person  or  by  agent, 
at  any  time  after  default  in  payment,  with  or  without  legal  process,  re- 
take said  property  wherever  found,  and  any  amount  that  may  have 
been  paid  shall  go  as  rent  for  its  use." 

The  contract  of  purchase  being  entire,  the  plaintiffs  could  not  rescind 
as  to  part  and  affirm  as  to  the  remainder.  While  they  claim  to  have 
returned  or  offered  to  return  the  horse  to  the  defendants,  the  evidence 
shows  that  the  plaintiffs  retained  possession  of  the  buggy,  and  never 
returned  or  offered  to  return  it  to  the  defendants  in  rescission  of  the 
contract ;  the  buggy  not  being  worthless.  This  being  so,  there  was  no 
rescission,  and  the  plaintiffs  could  not  recover  the  price  paid  while  they 
retained  a  substantial  portion  of  the  property  purchased  by  them.  24 
Am.  &  Eng.  Ency.  Law  (2d  Ed.)  1110;  Hancock  v.  Tucker.  8  Fla.  435 ; 
McCarthy  v.  Ellers,  107  App.  Div.  219,  94  N.  Y.  Supp.  1109;  Ault- 
man  v.  McFallon  (C.  C.)  11  Fed.  836;  Brockhaus  v.  Schilling,  52  Mo. 
App.  7Z. 

The  charge  of  the  court,  therefore,  is  erroneous,  as  being  inapplica- 
ble to  the  evidence,  and  the  verdict  is  not  supported  by  the  evidence. 
Whatever  may  have  been  the  right  of  the  plaintiffs  to  recover  damages 
sustained  because  of  the  breach  of  warranty,  they  could  not  recover 
by  way  of  rescission  for  a  return  of  the  price  paid  unless  they  placed 
the  defendants  in  statu  quo  by  a  return  of  the  horse  and  buggy.  It  is 
true  the  defendants  took  possession  of  "the  buggy  after  the  plaintiffs 
had  retained  and  used  the  same  for  seven  months ;  but  no  contention  is 
made  that  it  was  delivered  or  accepted  in  rescission  of  the  contract. 
The  buggy  was  retaken  by  the  defendants  after  default  in  payment  of 
the  note,  and  "without  the  knowledge  or  consent  of  the  plaintiffs,"  as 
is  alleged  in  the  third  count  of  the  declaration. 

If  there  is  to  be  another  trial  of  this  case,  we  deem  it  proper  to  say, 
in  view  of  other  phases  of  the  evidence,  if  a  vendee,  upon  tlie  refusal 
of  the  vendor  to  accept  his  offer  of  return,  when  he  has  the  right  to  re- 
scind, takes  the  property  and  uses  it  as  his  own,  he  thereby  loses  such 
right.  He  cannot  retain  the  property  using  it  as  his  own,  and  at  tlie 
same  time  rely  upon  a  previous  tender  as  a  rescission.    Moreover,  any 


Sec.  4)  REPUDIATION   OR   SUBSTANTIAL   BREACH  359 

unreasonable  delay  after  the  discovery  of  tlie  facts  giving  rise  to  this 
right  of  rescission,  or  any  action  taken  in  continued  recognition  of  the 
contract  as  a  binding  obligation,  amounts  to  a  ratification  or  election  to 
abide  by  the  contract,  and  bars  a  subsequent  rescission.  24  Am.  &  Eng. 
Ency.  (2d  Ed.)  1111 ;  28  Am.  &  Eng.  Ency.  Law  (1st  Ed.)  822;  Grymes 
V.  Sanders,  93  U.  S.  55,  23  L.  Ed.  798 ;  Logan  v.  Berkshire  Apartment 
Ass'n,  3  Misc.  Rep.  296,  22  N.  Y.  Supp.  '776 ;  McCulloch  v.  Scott,  13  B. 
Mon.  (Ky.)  172,  56  Am.  Dec.  561 ;  Owens  Co.  v.  Doughtv,  16  N.  D.  10, 
110  N.  W.  78;  Hefner  v.  Robert,  76  Neb.  192,  107  N.  W.  258;  Palmer 
&  Son  v.  Cowie,  27  Ohio  Cir.  Ct.  R.  617. 

Whether  an  offer  to  rescind  a  sale  of  chattels  and  return  them  to  the 
seller  was  made  within  a  reasonable  time  is,  in  general,  a  question  of 
fact  for  the  jury.  Andrews  v.  Hensler,  6  Wall.  254,  18  L.  Ed.  737; 
Barnett  v.  Stanton,  2  Ala.  195  ;  Doane  v.  Dunham,  79  111.  131 ;  Churchill 
V.  Price,  44  Wis.  540.  Where  the  facts  are  not  disputed,  however,  the 
question  of  what  is  a  reasonable  time  in  which  to  rescind  a  contract  is 
a  question  for  the  court  to  decide,  and  the  time  may  be  such  that  the 
court  will  declare  it  to  be  reasonable  or  unreasonable  as  a  matter  of 
law.  Bacon  v.  Green,  36  Fla.  325,  18  South.  870;  Johnson  v.  Whit- 
man Agricultural  Co.,  20  Mo.  App.  100;  Woods  v.  Thompson,  114 
Mo.  App.  38,  88S.  W.  1126. 

The  judgment  is  reversed  and  a  new  trial  ordered. 

Taylor  and  Hocker,  JJ.,  concur.  Whitfield,  C.  J.,  and  Shack- 
LEFORD  and  Cockrell,  JJ.,  concur  in  the  opinion.^' 

83  Accord:  Miner  v.  Bradley  (1830)  22  Tick.  (lAIa.ss.)  4.o7;  Clark  v.  Baker 
(1S4.S)  5  Mete.  CMass.)  452;  Fay  v.  Oliver  (1S48)  20  Vt.  118.  40  Am.  Dec.  7G4  ; 
County  of  Jackson  v.  Hall  (1870)  5.3  111.  440.  See,  also,  I'belps  v.  Mineral 
Springs  Heights  Co.  (1904)  12;i  Wis.  2.5;},  101  N.  W.  3G4. 

In  Miner  v.  Bradley,  supra,  the  plaintiff  had  pui'Cha.sed  from  the  defendant 
a  cow  and  some  hay  for  ^17  which  lie  paid  at  the  time.  lie  then  received  the 
cow  and  afterwards  demanded  the  hay,  which  wns  refused  hy  the  defendant 
who  had  used  it.  I'laintitf,  declaring  for  money  had  and  received,  and  money 
paid,  sued  to  recover  the  price  iiaid  for  the  hay.  The  court  held  that  plaintiff 
had  mistaken  liis  remedy;  JMorton,  J.,  saying:  "When  tlie  defendant  refused 
to  deliver  the  hay,  it  was  such  a  violation  of  the  contract  on  his  i)art,  as 
would  have  ju.stihed  the  iilaintiff  in  rescinding  it.  And,  had  he  done  so.  he 
would  have  been  entitled  to  a  return  of  the  money  which  he  had  paid.  This, 
however,  he  could  only  do  by  restoring  the  defendant  to  the  situation  he  was 
in  before  the  contract,  viz.  hy  returning  the  cow.  But  if  he  chose  to  retain 
her,  his  only  remedy  would  be  upon  the  special  contract  for  damages  for  the 
■conversion  of  the  hay.  This  would  have  been  peculiarly  adapte<l  to  his  case, 
and  would  have  done  exact  justice  between  the  parties.  The  damage  which 
the  plaintiff  sustained  l)y  the  defendant's  breach  of  his  contrac-t  might  be 
more  or  less  than  the  value  of  the  hay  or  the  price  which  might  be  supposed 
to  be  paid  for  it;  and  he  would  recover  according  to  the  injury  suffered  by 
him.  Again,  as  the  cow  and  the  hay  were  bought  together  for  one  gross  sum, 
there  are  no  means  of  ascertaining  how  much  was  intended  for  one  and  how 
much  for  the  other.  Indeed  it  is  not  probable  that  the  parties  fixed  any 
definite  price  to  the  articles  separately.  If  so,  It  might  not  have  been  the 
same;  and  as  there  was  no  interchange  of  opinions,  there  could  not  be  that 
agreement  of  two  minds  which  constitutes  a  contract.  There  being,  there- 
fore, no  price  agreed  upon  and  paid  for  the  hay,  none  could  be  recovered  back. 
The  value  of  the  hay,  which  would  be  differently  estimated  by  different  in^ 
divlduals,  certainly  could  not  be  deemed  the  measure  of  the  price.  In  this 
action  only  the  exact  amount  of  the  money  paid  can  be  recovered  back,     nie 


360  BENEFITS   UNDER   CONTRACT   PARTIALLY   PERFORMED  (Ch.  3 

DE  MONTAGUE  v.  BACHARACH. 
(Supreme  Judicial  Court  of  Massachusetts,  1902.    181  Mass.  256,  63  N.  E.  435.) 

Exceptions  from  superior  court,  Suffolk  county;  John  A.  Aiken, 
Judge. 

Contract  upon  an  account  annexed,  by  Albert  F.  De  Montague 
against  Solomon  Bacharach  and  others.  From  a  judgment  for  plain- 
tiff, defendants  bring  exceptions. 

LoRiNG,  J.®*  The  defendants  in  this  case  were  the  lessees  of  a  base- 
ment fitted  up  in  part  as  a  bar  for  the  sale  of  liquor,  and  in  part  as 
a  restaurant.  In  pursuance  of  an  oral  agreement  between  the  plain- 
tiff and  the  defendants,  the  plaintiff  ran  the  restaurant  for  his  own 
account  from  August  1,  1898,  to  July  1,  1899.  There  was  a  direct 
conflict  in  the  evidence  of  the  two  as  to  the  terms  of  the  oral  agree- 
ment, and  also  as  to  whether  the  plaintiff  left  voluntarily,  or  was  put 
out  by  the  defendants.  S'oon  after  he  left,  the  plaintiff  brought  this 
action,  in  which  he  seeks  to  recover  from  the  defendants  all  the  sums 
paid  by  the  plaintiff  for  the  privilege  of  running  the  restaurant,  for 
gas  and  electric  light  bills  paid  by  him,  and  also  for  some  work  done 
at  the  defendants'  request.  These  amounted  to  $1,528.22.  The  de- 
fendants declared  against  the  plaintiff  in  set-off  for  the  reasonable 
value  of  the  use  of  the  restaurant  and  the  utensils  belonging  to  them, 
and  for  gas  and  electric  light  bills  incurred  by  the  plaintiff,  which 
they  had  to  pay,  amounting  in  all  to  $3,082.57.  The  case  went  to  an 
auditor,  whose  report  is  not  material.  At  the  trial  the  plaintiff'  was 
given  a  verdict  by  tlie  jury,  and  the  case  comes  here  on  the  defendants' 
exceptions. 

The  plaintiff's  story  was  that  he  was  to  have  the  premises  to  the 
end  of  the  defendants'  lease,  which  had  about  two  years  to  run  on  Au- 
gust 1,  1898,  when  the  plaintiff  was  let  into  possession.  The  defend- 
ants testified  that  the  original  agreement  was  that  the  plaintiff  was 
to  have  the  restaurant  until  January  1,  1899,  and  that  there  was  no 
agreement  as  to  tlie  duration  of  the  arrangement  after  that  date.    The 

plaintiff  argues,  that  this  contract  may  be  severed,  either  with  or  \\-ithout 
tlie  consent  of  the  parties,  so  that  it  may  be  enforced  as  to  part  and  rejected 
as  to  another  part.  Here  is  nothing  tendin,?  to  show  any  agreement  to  divide 
the  contract,  as  it  api)lies  to  the  two  subjects.  So  far  from  it  that  the  de- 
fendant denies  that  the  hay  ever  was  included  in  the  contract." 

liut  if  the  transaction  consists  of  two  or  more  distinct  contracts,  rescission 
of  one  of  such  contracts  is  permissible.  Johnson  v.  Johnson  (1802)  3  Bos.  & 
Pul.  162,  127  Eng.  Rep.  89.  ("Althongh  both  pieces  of  gi'ound  were  bargained 
for  at  the  same  time,  we  must  consider  the  bargain  as  consisting  of  two  dis- 
tinct contracts ;  and  that  the  one  part  was  sold  for  foOO  and  the  other  for 
£700.")  Manning  v.  Humphreys  (1854)  3  E.  D.  Smith  (N.  T.)  218.  ("Where 
different  articles  are  sold  at  distinct  prices,  and  one  of  them  is  not  according 
to  contract,  it  is  not  necessary  to  return  the  other  articles,  although  purchased 
at  the  same  time.  The  purchaser  may  return  the  defective  article  and  recover 
the  price  paid  therefor.") 

8*  Portions  of  the  opinion,  holding  that  the  statute  of  frauds  did  not  apply, 
are  omitted. 


Sec.  4)  REPUDIATION   OR   SUBSTANTIAL   BREACH  361 

conflict  between  the  plaintiff  and  the  defendants  was  not  confined  to 
the  time  during  which  the  arrangement  was  to  last,  but  extended  to 
nearly  every  particular  of  the  arrangement,  and  there  was  evidence 
that  the  agreement  was  changed  from  time  to  time  while  it  lasted. 
The  jury  were  told  that  the  first  question  for  them  to  determine  was 
what  the  agreement  between  the  parties  ultimately  was,  and  the  next 
question  was,  who  ended  the  agreement?  If  the  plaintiff  ended  it,  he 
could  recover  nothing;  but,  if  the  defendants  ended  it,  "the  plaintiff 
is  entitled  to  fair  remuneration  for  tlie  benefits  that  he  conferred  upon 
the  defendants";  and  in  ascertaining  the  amount  due,  if  anything  is 
due  the  plaintiff,  a  balance  must  be  struck,  and,  after  ascertaining 
what  remuneration  is  due  the  plaintiff  for  benefits  conferred  upon  the 
defendants,  there  must  be  deducted  therefrom  the  "benefits  De  Mon- 
tague enjoyed  in  the  way  of  what  is  spoken  of  as  'rent,'  in  the  value 
of  the  enjoyment  of  the  premises,  and  any  other  elements  of  benefit 
which  appear  in  the  papers  and  in  the  case  that  he  had  while  he  was 
in  occupation,  and  you  set  the  two  classes  of  benefits  one  against  the 
other." 

The  plaintiff  contends  that  he  can  keep  his  verdict  on  either  one  of 
two  grounds,  namely :  First,  that  the  contract  was  within  the  stat- 
ute of  frauds,  and,  under  the  finding  of  the  jur>',  was  repudiated  by  the 
defendants ;  and,  second,  on  the  ground  that  he  had  a  right  to  rescind 
the  contract  on  the  defendants'  committing  a  breach  of  it.  But  we 
are  of  opinion  that  neither  ground  is  tenable.     *     *     * 

The  second  ground  on  which  the  plaintiff  seeks  to  keep  his  verdict 
is  that,  on  the  breach  of  the  contract  by  the  defendants,  he  was  entitled 
to  rescind  the  contract  and  recover  from  the  defendants  what  he  paid 
under  it.  But  as  was  said  in  Handforth  v.  Jackson,  150  Mass.  149,  154, 
22  N,  E.  634,  635,  in  case  a  plaintiff  wishes  to  rescind,  the  defendant 
is  "entitled  to  have  his  property  restored  to  him,  not  to  have  its  value 
fixed  by  a  jury" ;  and  it  is  settled  that  a  plaintiff  cannot  rescind  a  con- 
tract on  the  defendant  committing  a  breach  of  it,  without  putting  the 
defendant  in  statu  quo.  Leonard  v.  Morgan,  6  Grav,  412;  Bassett  v. 
Percival,  5  Allen,  345;  Handforth  v.  Jackson,  150  Mass.  149,  22  N.  E. 
634;  Marston  v.  Curtis,  163  Mass.  302,  39  N.  E.  1113;  Gassett  v. 
Glazier,  165  Mass.  480,  43  N.  E.  193.  In  the  case  at  bar  the  plaintiff 
had  enjoyed  the  privilege  of  conducting  the  restaurant  for  at  least  10 
months.  For  that  reason  he  could  not  put  the  defendants  in  statu  quo, 
and  therefore  could  not  rescind  the  contract  on  the  defendants  com- 
mitting a  breach  of  it.     *     *     * 

Exceptions  sustained.®" 

8s  In  Fay  v.  Oliver  (ISIS)  20  Vt.  118,  49  Am.  Dec.  764,  plaintiff  sued  to  re- 
cover the  purchase  money  paid  by  him  for  land  because  of  the  defendant's 
refusal  to  convey  a  portion  of  it.  The  court  denied  relief;  Royce,  C.  J.,  say- 
ing: "Here  had  been  full  payment  made  on  one  side,  and  full  possession 
given  on  the  other,  with  an  actual  conveyanre  of  part  of  the  land.  The  pos- 
session had  been  enjoyed  by  the  plaintiff  for  several  years,  before  he  attempted 
any  rescission  of  the  contract.     So  that  a  part  execution  of  the  contract  had 


362  BENEFITS   UNDER   CONTRACT   PARTIALLY   PERFORMED  (Cll.  3 

taken  place,  according  to  every  rule  on  the  subject,  both  at  law  and  in  equity. 
If  the  payment  alone  did  not  amount  to  this,  the  conveyance  of  part  and  such 
a  change  of  possession  as  to  all  most  assuredly  did.  And  it  is  evident,  that 
no  subsequent  rescission  of  the  contract  could  restore  the  parties  to  their 
original  condition,  in  reference  to  the  property;  for  a  long  period  of  posses- 
sion and  enjoyment,  inconsistent  with  such  original  condition,  had  already 
passed.  And  to  prove  that,  in  such  a  state  of  things,  when  the  parties  could 
not  be  placed  in  statu  quo,  it  was  too  late  for  either,  alone,  to  rescind  the 
contract,  the  authorities  are  numerous  and  conclusive.  The  mention  of  a  few 
will  suffice.  Hunt  v.  Silk,  5  East,  449;  Beed  v.  Blandford,  2  Y.  &  J.  2S4 ; 
Seymour  v.  Bennet,  14  Rlass.  266;  Ellis  v.  Hoskins,  14  Johns.  [N.  Y.]  363; 
Caswell  v.  Black  River  Co.,  14  Johns.  [N.  Y.]  453 ;  Fuller  v.  Hubbard,  6  Cow. 
[N.  Y.]  13  [16  Am.  Dec.  423];    Gale  v.  Nixon,  6  Cow.  [N.  Y.]  445." 

In  Hunt  V.  Silk  (1804)  5  East,  449,  the  defendant  agreed,  in  consideration 
of  £10.,  to  let  a  house  to  the  plaintitf,  which  the  defendant  was  to  repair  and 
execute  a  lease  of  within  ten  days,  but  the  plaintiff  was  to  have  immediate 
possession,  and  in  consideration  of  the  aforesaid  was  to  execute  a  counterpart 
and  pay  the  rent.  The  plaintiff  took  possession  and  paid  £10.  immediately, 
but  the  defendant  neglected  to  execute  the  lease  and  make  tlie  repairs.  Held, 
that  the  plaintiff  could  not,  by  quitting  tlie  house  because  of  tlie  default  of  the 
defendant,  rescind  the  contract  and  recover  back  the  £10.  in  an  action  for 
money  had  and  received,  but  could  only  sue  for  a  breach  of  the  special  con- 
tract; Lord  Ellenborough,  C.  J.,  saying:  "Now  where  a  contract  is  to  be  re- 
scinded at  all,  it  must  be  rescinded  in  toto,  and  the  parties  put  in  statu  quo. 
But  here  was  an  intermediate  occupation,  a  part  execution  of  the  agreement, 
which  was  incapable  of  being  rescinded.  If  the  plaintiff  might  occupy  the 
premises  two  days  beyond  the  time  wlien  the  repairs  were  to  have  been  done 
and  the  lease  executed,  and  yet  rescind  the  contract,  why  might  he  not  rescind 
it  after  a  twelvemonth  on  the  same  account?  This  objection  cannot  be  gotten 
rid  of;    the  parties  cannot  be  put  in  statu  quo." 

In  this  country  it  is  often  held  that  plaintiff's  use  of  the  property  which  is 
the  subject-matter  of  the  contract  does  not  preclude  the  riglit  to  rescind. 
Nothe  V.  Nomer  (1S86)  54  Conn.  326,  8  Atl.  V.'A  (land);  Reynolds  v.  Lynch 
(1906)  98  Minn.  58,  107  N.  W.  145  (option  on  land)  ;  Campbell  Printing  Press 
&  Mfg.  Co.  V.  Marsh  (1S94)  20  Colo.  22,  36  Pac.  709  (printing  press).  In  the 
case  last  cited  the  court  said :  "It  is  urged  that  as  the  press  has  been  put 
in  use  by  the  appellees,  the  appellant  could  not  be  placed  in  stiitu  quo,  and 
hence  the  former  could  not  rescind.  It  is  undoubtedly  true  that,  where  one 
of  tlie  parties  to  a  contract  seeks  to  rescind,  he  must  place  the  other  in  statu 
quo.  He  will  not  be  allowed  to  repudiate  a  contract  and  retain  a  benefit  de- 
rived therefrom.  In  this  case,  however,  it  was  in  contemplation  of  the  par- 
ties that  the  press  slionld  be  used  pending  the  delivery  of  the  folder.  The 
evidence  sliows  that  in  fact  it  was  used  only  to  a  very  limited  extent,  that 
api)ellees  bad  little  or  no  benefit  from  such  use,  and  that  tlie  press  was  re- 
turned in  as  good  condition  as  when  received.  It  is  true  that  the  witnesses 
testified  that  it  would  not  sell  so  well  as  an  unused  press,  but  the  rule  re- 
quiring the  seller  to  be  placed  in  statu  quo  has  never,  we  think,  been  extended 
so  far  as  to  entitle  the  parties  in  fault  to  be  saved  from  all  loss." 

However,  in  Aultman  &  Taylor  Co.  v.  Mead  (1001)  109  Ky.  5.^3.  60  S.  W. 
294,  the  court  said  by  way  of  dictum  that  a  purchaser  of  a  sawmill  could  not, 
after  three  years'  use,  rescind  the  contract  and  recover  the  purchase  price, 
since  he  could  not  have  put  the  seller,  in  so  far  as  the  mill  was  concerned,  in 
as  good  a  situation  as  it  (the  seller)  was  before,  "as  three  years'  use  of  a 
sawmill  of  this  character  would  very  probably  reduce  its  salable  value." 


Sec.  4)  REPUDIATION   OR  SUBSTANTIAL  BREACH  3G3 

TIMMERMAN  v.  STANLEY. 

(Supreme  Court  of  Georgia,  1905.     123  Ga.  850,  51  S.  E.  7G0,  1  L.  R.  A. 

[N.  S.]  379.) 

Error  from  City  Court  of  Macon;    Robt.  Hodges,  Judge. 

Timmerman  brought  suit  against  Stanley,  alleging  as  follows :  On 
July  29,  1903,  the  plaintiff  bought  of  the  defendant  a  scholarship 
in  Stanley's  Business  College,  in  the  city  of  Macon,  in  the  telegraphic 
department,  which  embraced  a  course  in  learning  telegraphy  in  said 
college.  On  August  12,  1903,  he  bought  of  the  defendant  a  scholar- 
ship in  the  shorthand  department  in  said  college,  which  embraced  a 
course  in  learning  stenography,  typewriting,  etc.  "The  said  scholar- 
ships were  delivered  to  petitioner  under  the  contract  that  a  full  course 
might  be  taken  by  him  until  he  was  proficient  in  said  lines  selected, 
without  a  limit  of  time."  Stanley  is  the  proprietor  of  the  college, 
and  the  scholarships  were  sold  by  him  to  the  plaintiff  for  the  sum  of 
$64.  On  August  2,  1904,  the  plaintiff  was  expelled  by  the  defend- 
ant from  the  college  for  no  fault  or  cause  on  his  part.  He  had  violated 
no  rules  of  the  college,  nor  had  he  been  guilty  of  any  conduct  to  author- 
ize the  expulsion.  He  had  not  completed  the  courses  prescribed  by 
the  scholarships,  and  at  the  time  of  his  expulsion  was  still  pursuing 
his  studies  at  the  college.  "Petitioner  shows  that  said  Stanley  refuses 
to  pay  back  to  your  petitioner  the  $64  paid  for  said  scholarships,  and 
to  which  your  petitioner  is  entitled  on  account  of  said  Stanley  failing 
to  carry  out  said  agreement  in  said  scholarships ;  and  petitioner  prays 
for  a  judgment  against  said  Stanley  for  said  sum."  By  the  breach  of 
the  contract  defendant  has  damaged  plaintiff  in  the  sum  of  $500. 
Plaintiff  has  paid  out  $300  for  board  and  expenses  in  attending  the 
school  in  order  to  qualify  himself  for  business.  By  reason  of  the  ex- 
pulsion he  cannot  now  finish  his  courses,  so  as  to  enter  business,  as 
other  business  colleges  will  not  receive  him  after  being  expelled  from 
this  one.  He  is  now  at  a  monthly  expense  of  $15,  and  will  be  so  up  to 
the  time  of  the  hearing  of  this  action.  "He  prays  for  a  judgment  for 
said  sum  against  the  said  S'tanley."  By  reason  of  the  breach  of  the 
contract  defendant  has  delayed  plaintiff  in  finishing  his  coiirse  so  as 
to  enter  business  for  the  current  year,  to  his  injury  in  the  sum  of  $500. 
The  defendant  demurred  to  the  declaration  generally,  and  also  spe- 
cially. *  *  *  The  demurrer  was  sustained,  and  the  plaintiff  ex- 
cepted. 

Lumpkin,  J.®'  (after  stating  the  facts).  Assuming  the  allegations 
of  the  declaration  to  be  true,  as  we  must  do  in  considering  the 
demurrer,  each  of  the  contracts  evidenced  by  the  two  scholarships  was 
entire,  and  when  the  defendant  repudiated  them  the  plaintiff  had  the 
right  to  treat  his  action  as  rescission  and  bring  suit  for  the  amount 
which  had  been  paid  by  him.     Supreme  Council  v.  Jordan,   117  Ga. 

8«  Portions  of  tlie  statement  of  facts  and  of  the  opinion.  Involving  a  point 
of  pleading,  are  omitted. 


364  BENEFITS   UNDER   CONTRACT   PARTIALLY   PERFORMED  (Cll.  3 

808,  45  S.  E.  33.  Or  he  might  sue  for  a  breach  of  the  contract.  Ala- 
bama Gold  Ins.  Co.  V.  Garmany,  74  Ga.  51.  In  the  latter  event,  that 
decision  holds  that  in  some  cases  the  amount  paid  by  the  plaintiff 
may  be  considered  in  fixing  the  amount  of  the  damages.  In  8  Am.  & 
Eng.  Enc.  Law  (2d  Ed.)  632,  it  is  said :  "As  has  been  said  more  than 
once,  the  fundamental  principle  of  damages  is  compensation  to  the 
injured  party.  This  rule  in  the  present  connection  is  simply  the  ap- 
plication of  the  principle  stated  to  contracts ;  that  is,  the  measure  of 
damages  in  such  cases  is  the  value  of  the  bargain  to  tlie  complaining 
party,  or  the  loss  v^hich  a  fulfillment  of  the  contract  would  have 
prevented  or  the  breach  of  it  has  entailed.  Or,  as  it  has  been  said,  the 
general  intent  of  the  law,  which  gives  damages  in  actions  for  breach 
of  contract,  is  to  put  the  injured  party,  so  far  as  it  can  be  done  by 
money,  in  the  same  position  as  if  the  contract  had  been  performed. 
According  to  this  principle,  the  measure  of  damages  for  breach  of  a 
contract  is  not,  as  a  general  rule,  the  consideration  paid,  but  rather  the 
value  of  the  thing  contracted  for,  unless,  indeed,  tlie  plaintiff  has, 
under  the  circumstances,  a  right  to  disaffirm  the  contract,  and  sue 
to  recover  the  consideration  paid."  The  plaintiff  cannot  in  the  same 
action  both  treat  tlie  contract  as  rescinded  and  rely  on  it.  Harden 
V.  Lang,  110  Ga.  392,  36  S.  E.  100. 

It  is  not  quite  easy  to  determine  whether  this  action  is  one  for 
breach  of  the  contract,  or  one  for  the  recovery  of  the  purchase  price 
of  the  scholarships  based  on  the  idea  of  a  rescission,  coupled  with  an 
effort  to  sue  for  the  breach  of  the  contract  in  the  same  action.  It 
has  been  held  that  suit  to  recover  tlie  purchase  price  is  equivalent  to 
an  express  disaffirmance,  and  that  after  such  disaffirmance  there  can- 
not be  a  proceeding  to  enforce  the  contract,  either  by  an  equitable 
proceeding  to  compel  specific  performance  or  by  an  action  for  dam- 
ages. 24  Am.  &  Eng.  Enc.  Law  (2d  Ed.)  645,  note  5.  The  plaintiff 
alleged  that  the  defendant  refused  to  pay  back  to  him  the  $64  paid 
for  the  scholarships,  to  which  the  plaintiff  is  entitled;  and  he  prays 
for  a  judgment  for  that  specific  sum,  not  as  damages,  or  as  a  part  of 
his  damages,  or  as  throwing  light  on  the  amount  of  damages,  but  as  a 
return  of  the  purchase  money.  Taking  the  pleadings  most  strongly 
against  the  pleader,  the  statement  that  the  defendant  refuses  to  pay 
back  the  amount  to  him  implied  that  a  demand  had  been  made.  We 
are  of  the  opinion,  therefore,  that  this  part  of  the  declaration  treats  the 
contract  as  at  an  end,  and  seeks  to  recover  the  amount  paid  by  the 
plaintiff  to  the  defendant  under  it.  Such  being  the  case,  the  particular 
portion  of  the  declaration  which  sues  for  the  recovery  of  such  amount 
is  not  subject  to  demurrer  on  the  ground  urged  against  it. 

It  is  contended,  in  the  brief  of  counsel  for  the  defendant  in  error, 
that  there  can  be  no  recovery  of  the  amount  paid,  because,  in  order 
to  rescind  the  contract,  the  plaintiff  must  restore  the  status  quo,  and 
must  tender  back  to  the  defendant  what  he  has  received  from  him, 
and  that  this  cannot  be  done  in  the  present  case.     Civ.  Code  1895,  § 


Sec.  i)         RErUDIATION  OR  SUBSTANTIAL  BREACH  oG5 

3712.  This  is  a  general  rule  where  one  party  to  the  contract  has  re- 
ceived goods,  money,  or  other  thing  of  value,  which  is  capable  of  being 
returned  to  the  other  party.  But  in  a  contract  like  that  involved  in 
the  present  case,  where  a  person  agrees  to  teach  another  a  certain  thing, 
or  to  qualify  him  for  a  certain  position,  if  he  gives  the  student  some 
instruction  and  then  refuses  to  complete  his  contract,  there  would  be 
no  possible  way  by  which  such  instruction  as  he  had  given  could  be 
returned  or  tendered  back  to  him;  nor  is  the  other  party  required  to 
estimate  value  for  what  has  been  done  and  tender  such  amount.  He 
cannot  hold  onto  the  amount  paid,  refuse  to  proceed  with  the  con- 
tract, and  defend  against  an  action  to  recover  the  price  paid  on  the 
ground  that  the  plaintiff  had  not  tendered  back  to  him  his  instruction, 
and  could  not  restore  him  to  the  status  quo.  He  cannot  by  his  own 
conduct  place  himself  in  a  situation  where  restoration  is  impossible, 
repudiate  the  contract,  and  set  up  this  situation  as  a  defense  to  a  suit 
for  the  amount  paid.  If  he  abandons  the  contract,  he  should  not 
complain  that  the  other  party  is  willing  to  treat  it  as  rescinded.  The 
Code  section  cited  has  no  application  in  such  a  case.  Henderson  Ware- 
house Co.  V.  Brand,  105  Ga.  217,  224,  31  S.  E.  551.  The  cases  of  Ala- 
bama Gold  Life  Ins.  Co.  v.  Garmany,  and  Supreme  Council  v.  Jor- 
dan, supra,  are  also  in  point  as  to  this  contention.     *     *     * 

From  what  has  been  said  it  is  evident  that  the  claim  for  expenses 
in  attending  school,  expenses  pending  the  suit,  and  delay  in  being  pre- 
pared for  business  cannot  be  joined  with  the  action  for  the  return  of 
the  purchase  price,  based  upon  a  rescission  of  the  contract.  More- 
over, the  allegations  of  the  declaration  with  respect  to  those  items  are 
quite  vague  and  general,  and  a  part  of  the  damages  would  not  be  re- 
coverable, even  in  an  action  based  on  a  breach  of  the  contract.  The 
dismissal  of  the  entire  case  was  erroneous.  The  claim  to  recover  the 
items  of  damage  just  referred  to  should  have  been  stricken,  and  the 
case  left  to  stand  on  the  suit  for  the  return  of  tlie  price  paid  for  the 
scholarships.     *     *     * 

Judgment  reversed,  with  directions.*' 

87  In  Brown  v.  Woodbury  (1903)  183  Mass.  279,  67  N.  E.  327,  the  defendants 
agreed  to  employ  the  phiintiff  to  act  as  manager  of  a  hotel  for  a  year,  the 
plaintiff  to  be  iiaid  a  certain  percentage  of  the  net  proceeds,  and  plain- 
tiff's father  and  mother  to  have  board  and  rooms  at  the  hotel  without 
charge  during  the  year.  After  partial  performance  the  defendant  discharg- 
ed the  plaintiff.  It  was  held  that  the  fact  that  the  plaintiff  had  receiv- 
ed the  benefit  of  the  board  and  lodging  of  his  father  and  mother  during 
that  time  did  not  prevent  him  from  rescindmg  the  contract  and  suing  the 
defendant  on  a  quantum  meruit  for  the  value  of  his  services  in  excess  of  such 
board  and  lodging;  Hammond,  J.,  saying,  "The  defendants  further  contend 
that  the  plaintiTf,  having  received  the  benefit  of  the  board  of  his  father  and 
mother  several  months,  cannot  now  avail  himself  of  this  rule.  IJut  this  board 
was  in  part  payment  of  the  work  done  by  the  plaintiff,  and  whether  the  ac- 
tion be  upon  the  contract  or  upon  quantum  meruit,  the  plaintiff  is  equally  en- 
titled to  it.  Part  payment  in  money  would  not  bar  the  plaintiff  from  the  ac- 
tion on  quantum  meruit  (Cook  v.  Gray  and  Connolly  v.  Sullivan,  ubi  supra), 
and  in  principle  part  payment  in  board  can  have  no  different  effect.  In  the 
opinion  of  a  majority  of  the  court  the  rulings  were  right" 


366  BENEFITS  UNDER  CONTRACT  PARTIALLY  PERFORMED         (Cll.  3 

AMERICAN  LIFE  INS.  CO.  v.  McADEN. 

(Supreme  Court  of  Pennsylvania,  1SS5,     109  Pa,  399,  1  Atl.  256.) 

Error  to  court  of  common  pleas  No.  3,  Philadelphia  county. 

This  was  an  action  of  assumpsit  to  recover  premiums  paid  upon  a 
policy  of  insurance.  The  jury  rendered  a  verdict  for  the  plaintiff, 
whereupon  this  writ  was  taken. 

Clark,  J.*^  The  evidence  shows  that  in  May,  1869,  a  policy  of  life 
insurance  was  issued  by  the  defendant,  the  American  Life  Insurance 
Company,  to  the  plaintiff  Mary  F.  McAden,  in  the  sum  of  $20,000, 
upon  the  life  of  her  husband,  Rufus  Y.  McAden,  of  Charlotte,  North 
Carolina ;  that  the  plaintiff  paid  premiums  on  this  policy,  in  quarterly 
payments  of  $104.44  each,  from  its  date  until  in  August,  1879,  when 
the  company  refused  to  accept  the  premium  then  tendered,  declaring 
that  the  policy,  by  its  terms,  had  become  forfeit  to  the  company;  the 
premium  mentioned  not  having  been  paid  or  tendered  within  the  time 
stipulated,  but  one  or  two  days  later.  This  action  of  assumpsit  was 
thereupon  brought,  not  upon  the  contract  contained  in  the  policy,  but 
as  upon  a  rescission  of  it,  to  recover  the  premiums  paid,  upon  a  count 
for  money  had  and  received  by  the  defendant  to  the  use  of  the  plain- 
tiff. 

The  policy  was  produced  at  the  trial,  and  the  plaintiffs  offered  to 
read  it  in  evidence,  but,  upon  the  objection  of  the  defendant's  counsel 
that  it  was  an  instrument  under  seal,  and  the  action  assumpsit,  the 
court  excluded  it.  This  ruling  of  the  court  was,  we  think,  erroneous, 
but  the  defendant  cannot  complain,  as  it  was  made  at  his  instance. 
The  action,  it  is  plain,  is  not  founded  on  the  policy;  for  if  the  policy 
be  in  force,  there  can,  in  the  nature  of  the  case,  be  no  recovery  upon 
the  count  for  money  had  and  received.  The  suit  is  in  direct  disaffirm- 
ance of  the  contract,  and  cannot  therefore  be  said  to  be  founded  up- 
on it."® 

Assumpsit  for  money  had  and  received  is  frequently  brought  to 
recover  back  a  deposit  or  money  paid  upon  an  agreement  which  the 
defendant  omits  or  refuses  to  perform ;  and  on  a  single  count  in 
the  common  form,  various  sums,  received  at  different  times,  may  be 
recovered.  1  Chit.  PI.  353,  356.  When,  for  example,  a  person  pur- 
chases land,  and  pays  part  of  the  purchase  money,  and  the  seller  does 
not,  and  will  not,  complete  the  engagement,  so  that  the  contract  is 
totally  unexecuted,  he,  the  purchaser,  may  either  affirm  the  agreement 
by  bringing  an  action  for  non-performance  of  it,  or  he  may  elect  to 
disaffirm  it  ab  initio,  and  bring  an  action  for  money  had  and  received 
to  his  use.     1  Sugd.  Vend. 

88  The  statement  of  facts  is  omitted. 

8  9  By  the  weight  of  authority  it  is  immaterial  that  the  contract  was  under 
seal.  Weaver  v.  Bentley  (1S03)  1  Caines  (N,  Y.)  47 ;  Ballou  v.  Billings  (1884) 
136  Mass.  307. 

Contra:    Western  v.  Sharp  (1853)  14  B.  Mon.  (53  Ky.)  177. 


Sec.  4)         REPUDIATION  OR  SUBSTANTIAL  BREACH  367 

Or,  where  two  persons  enter  into  a  contract  for  services,  and,  after 
part  performance  by  one,  the  other  denies  its  existence,  and  gives 
notice  of  his  intention  to  disregard  it,  the  party  not  in  default  may, 
at  his  option,  perform  fully,  and  enforce  tlie  contract,  or  consider  it  at 
an  end,  and  recover  for  part  performance  upon  a  quantum  meruit. 
Moorhead  v.  Fry,  24  Pa.  Z7.  In  Feay  v.  Decamp,  15  Serg.  &  R.  227, 
there  was  an  agreement,  under  seal  for  the  sale  of  land,  with  posses- 
sion delivered,  and  a  large  part  of  the  money  paid,  but  not  to  the 
extent  the  contract  required.  The  owner  resumed  the  possession,  and 
declared  the  contract  at  an  end.  Held  to  be  a  disafifirmance,  and  that 
the  vendee  might,  in  an  action  of  assumpsit,  recover  back  the  money 
paid  on  account  for  money  had  and  received. 

The  doctrine  as  to  the  distinction  to  be  drawn  between  a  suit  on 
the  contract  and  a  suit  grounded  upon  a  rescission  of  it  is  thus  plainly 
stated  in  Smethurst  v.  Woolston,  5  Watts  &  S.  109:  "But  this  distinc- 
tion, which  pervades  all  the  authorities,  governs  the  whole  case ;  for 
the  purchaser  may  declare  specially  for  the  breach  of  the  contract,  or 
simply  for  money  had  and  received,  to  recover  back  the  deposit,  if  any 
be  made,  or  the  purchase  money,  if  it  be  paid;  or  he  may  join  both 
causes  of  action  in  the  same  declaration.  And  when  this  is  done,  it 
is  granted  that  under  the  money  count  the  money  advanced  may  be 
recovered  back,  or,  where  a  specific  article  has  been  given  in  satisfac- 
tion, the  purchaser  may,  when  default  is  made,  elect  to  consider  the 
contract  at  an  end,  and  recover  the  article  itself,  or  its  value,  from  the 
vendor.  But,  on  the  other  hand,  where  the  purchaser  declares  spe- 
cially for  breach  of  the  contract,  and  thereby  affirms  it,  the  only  rule  of 
damages  is  the  value  of  the  article  at  or  about  the  time  it  is  to  be  de- 
livered." The  same  principle  is  applied  in  Wilkinson  v.  Ferree,  24 
Pa.  190,  and  Miller  v.  Phillips,  31  Pa.  218. 

In  all  such  cases  the  contract,  although  under  seal,  is  rightly  received 
in  evidence  to  exhibit  the  transaction  as  it  previously  existed,  to  de- 
termine the  resulting  rights  of  the  parties,  and,  in  some  cases,  perhaps, 
to  aid  in  the  assessment  of  the  damages.  Mehaffy  v.  Share,  2  Pen.  & 
W.  361 ;  Carrier  v.  Dil worth,  59  Pa.  406.  If,  however,  the  contract 
has  been  in  part  performed,  the  plaintiff  having  received  some  substan- 
tial benefit  therefrom,  and  if,  upon  a  verdict  in  his  favor,  the  parties 
cannot  be  placed  in  statu  quo,  the  count  for  money  had  and  received 
in  general  is  not  maintainable.  Chit.  PI.  355.  The  plaintiff  must 
show  tliat  he  has  equity  and  good  conscience  on  his  side  or  he  cannot 
recover. 

In  the  case  at  bar  the  rights  of  the  parties  under  the  contract  of 
insurance  had  attached,  but  the  plaintiffs  had  never  received  any  actual 
benefit  from  it.  They  may,  in  some  sense,  perhaps,  be  said  to  haver 
enjoyed  the  protection  which  the  policy  afforded  in  the  event  of  tlie 
husband's  death;  but  as  that  event  did  not  occur,  the  policy  had  as 
yet  been  of  no  appreciable  actual  advantage  to  the  plaintiff,  and  no 
real  disadvantage  to  the  defendant.     The  parties,  for  anything  that 


368  BENEFITS  UNDER  CONTRACT  PARTIALLY  PERFORMED         (Ch.  3 

appears,  upon  the  plaintiffs'  recovery  are  placed  precisely  in  the  same 
situation  they  were  in  before  the  contract  was  made;  for,  although 
the  company  carried  the  risk,  and  the  plaintiff  Mary  F.  McAden,  at 
all  times  during  the  continuance  of  the  contract  upon  tlie  happening 
of  the  event  provided  against  was  entitled  to  the  indemnity  it  secured, 
yet  the  company  has  paid  nothing  and  the  plaintiffs  have  received  noth- 
ing. As  in  the  case  of  any  other  contract,  the  parties  were  each  en- 
titled during  its  continuance  according  to  its  terms. 

The  policy  when  made  was  admittedly  valid;  the  premiums  which 
were  paid  were  voluntarily  paid  upon  that  policy ;  the  risk  had  been 
running  for  10  years ;  the  obligations  of  the  contract  were  long  since 
in  force  on  both  sides ;  and  it  is  clear  that  the  plaintiffs  could  not,  on 
their  own  mere  motion,  rescind  it  so  as  to  recover  back  the  premiums 
paid.  But  if,  after  receiving  these  several  premiums,  the  company, 
witliout  right,  refuse  to  receive  further  premiums  as  they  mature, 
deny  their  obligation,  and  declare  the  contract  at  an  end,  the  plain- 
tiff, we  think,  may  take  the  defendants  at  their  word,  treat  the  con- 
tract as  rescinded,  and  recover  back  the  premiums  paid  as  so  much  mon- 
ey had  and  received  for  their  use.  Rescission  or  avoidance,  properly 
so  called,  annihilates  the  contract  and  puts  the  parties  in  the  same 
position  as  if  it  had  never  existed.  And  notice  that  a  party  will  not 
perform  his  contract  has  the  same  effect  as  a  breach.  Ballou  v.  Bil- 
lings, 136  Mass.  309.  It  is  of  no  consequence  that  the  payment  Oif  the 
premiums  was  voluntary  upon  a  valid  obligation  of  tlie  plaintiff  to 
discharge  a  debt  which  the  plaintiff  owed,  and  which  the  defendant 
had  a  right  to  receive.  The  action  is  not  founded  in  any  fraud  or 
failure  in  the  original  contract,  but  on  a  rescission  of  it  through  the 
subsequent  refusal  of  the  defendant  to  perform  it.  It  is  clearly  shown, 
indeed  it  is  admitted,  that  the  premium  due  in  August,  1879,  was  ten- 
dered to  the  company,  and  was  refused  upon  the  ground  that  the  com- 
pany was  not  then  bound  to  receive  it,  and  that  the  policy,  according 
to  some  alleged  express  stipulation  it  contained  respecting  the  pay- 
ment of  the  premiums,  was  forfeited  and  void.  The  president  of  tlie 
company  denied  all  liability  on  the  policy,  and  declared  the  contract  at 
an  end.  If  the  reasons  assigned  by  the  president  were  valid  and  true, 
the  refusal  to  receive  the  premium  was  right;  if  the  contract  was 
in  fact  forfeited  and  void,  there  was  no  contract  remaining  to  rescind ; 
and  if  there  was  no  rescission,  there  could  be  no  recovery  for  money 
had  and  received.  But  there  was  no  proof  whatever  of  a  forfeiture 
of  the  policy.  It  was  alleged  that  the  contract  contained  a  clause, 
according  to  which,  by  reason  of  the"  non-payment  of  the  premium 
due  in  August,  1879,  on  or  before  the  exact  day  designated  for  pay- 
'ment  thereof,  a  forfeiture  ensued.  Whether  this  was  so  or  not  de- 
pended, in  the  first  instance  at  least,  upon  the  proper  reading  and 
construction  of  the  policy  itself,  which  the  defendant  would  not  allow 
the  plaintiffs  to  offer  in  evidence,  nor  would  they  offer  it  them- 
selves. 


Sec.  4)  REPUDIATION  OR  SUBSTANTIAL  BREACH  3G9 

The  policy  is  tlieref ore  not  before  us ;  we  do  not  know  what  it  pro- 
vides ;  if  it  contains  any  such  clause,  it  should  have  been  given  in  evi- 
dence. As  the  case  is  now  presented  to  us,  the  company  would  ap- 
pear to  have  declared  the  lapse  of  the  policy,  without  any  warrant 
whatever,  and  without  cause,  and  if  the  defendants  received  the  plain- 
tiffs' money,  and  under  such  circumstances,  upon  demand,  refused  to 
return  it,  we  think  it  may  be  recovered  back  in  an  action  of  assump- 
sit.   May,  Ins.  429 ;   Seipel  v.  International  Ins.  Co.,  84  Pa.  47. 

The  case  of  McKee  v.  Phoenix  Ins.  Co.,  28  Mo.  383,  75  Am.  Dec. 
129,  is,  in  all  respects,  similar  in  principle  to  the  case  under  considera- 
ation.  There  a  wife  insured  the  life  of  her  husband,  and,  after  making 
several  payments,  obtained  a  divorce.  Other  payments  were  after- 
wards made,  when  the  insurer  refused  to  receive  a  semi-annual  install- 
ment tendered  when  due.  In  an  action  for  money  had  and  received,  it 
was  held  that  the  decree  of  divorce  did  not  authorize  a  forfeiture  of 
the  policy,  and  that  "if  the  defendant  wrongfully  determined  the  con- 
tract by  refusing  to  receive  a  premium  when  it  was  due,  then  the 
plaintiff  had  a  right  to  treat  the  policy  as  at  an  end,  and  to  recover  all 
the  money  she  had  paid  under  it." 

In  some  cases,  perhaps,  the  defendant  ought  to  refund  the  principal 
merely,  and  in  others  he  ought,  ex  aequo  et  bono,  to  refund  the  prin- 
cipal, with  interest.  Each  case  depends  upon  the  justice  and  equity 
arising  out  of  its  peculiar  circumstances.  In  this  case,  however,  in- 
terest was  allowed  from  the  date  of  the  demand  only,  and  certainly  the 
defendant  cannot  complain  of  that.    The  judgment  is  affirmed. 

TrunkEy,  J.,  dissents.®** 

»o  Accord :  Black  v.  Supreme  Council  American  Legion  of  Honor  (C.  C.  1903) 
120  Fed.  5S0. 

Contra :  Continental  Life  Insurance  Co.  v.  Houser  (1SS3)  89  Ind.  258,  where 
the  court  said :  "The  policy  was  valid  in  its  inception,  and  there  was  for  a 
time  a  risk,  and  the  general  rule  is  that  where  the  risk  attaches  premiums 
cannot  be  recovered  from  the  c■ompan}^  Bliss,  Life  Ins.  750 ;  May,  Ins.  §  5G7. 
If  there  was  a  continuing  of  tlie  valid  risk  up  to  the  time  the  last  premium 
was  tendered  and  refused,  then  the  premiums  previously  paid  cannot  be  re- 
covered. May,  Ins.  §§  5G8  and  509.  If,  however,  the  act  of  the  appellant  in 
declaring  a  forfeiture  was  wrongful,  then  there  must  be  a  remedy.  We  do 
not  feel  called  upon  to  decide  whether  the  remedy  would  be  a  reinstatement 
of  the  policy,  or  an  action  for  its  value,  for  the  complaint  is  insufficient  in 
any  view  that  may  be  taken  of  the  question." 

See,  also,  Johnson  v.  Insurance  Co.  (1S94)  .56  Minn.  36.5,  57  N.  W.  934,  59 
N.  W.  992,  26  L.  R.  A.  187,  45  Am.  St.  Rep.  473,  where  it  was  held  that,  in  an 
action  by  an  infant  in  disaflirmance  of  a  contract  of  insurance  and  to  recover 
the  premimns  paid,  the  insurance  company  could  recoup  the  equitable  value 
of  the  insurance  received  by  him  up  to  the  time  of  disaffirmance. 
.  Where  an  insurance  company  \\ishes  to  rescind  a  policy,  it  must  return  the 
premiums  already  paid.  Metropolitan  Life  Insurance  Co.  v.  Freedman  (1909) 
IS-^  Mich.  114,  123  N.  W.  547,  32  L.  R.  A.  (N.  S.)  298. 
Thubs.Quasi  Oont. — 24 


370      BENEFITS  UNDER  CONTRACT  PARTIALLY  PERFORMED    (Ch.  3 

TODD  V.  LEACH. 

(Supreme  Court  of  Georgia,  1897.     100  Ga.  227,  28  S.  E.  43.) 

Error  from  City  Court  of  Atlanta;   J.  D,  Berry,  Judge. 

Lumpkin,  P.  J.  An  action  was  brought  by  Leach  against  Abram 
and  Jane  Todd.  The  declaration  made,  in  substance,  the  following 
case :  Under  a  contract  with  the  defendants,  the  plaintiff,  at  an  ex- 
pense of  $200,  built  a  house  upon  a  lot  which  they  owned  in  the  city 
of  Atlanta,  the  consideration  of  his  so  doing  being  that  he  was  to 
have  the  use  and  occupation  of  tlie  same  for  the  balance  of  his  life, 
free  of  rent.  He  went  into  possession.  Afterwards,  in  violation  of 
their  contract,  the  defendants  wrongfully  evicted  him  from  the  prem- 
ises. The  prayer  of  the  petition  was  for  the  recovery  of  the  money  he 
had  expended,  and  the  value  of  the  labor  he  had  performed,  in  the 
erection  of  the  house ;  the  same  amounting  altogether,  as  alleged,  to 
$200.  The  action  was  in  no  sense  one  to  recover  the  value  of  the 
life  term  of  which  the  plaintiff  claimed  he  had  been  unlawfully  de- 
prived. The  defendants  sought  to  set  off  against  the  plaintiff's  claim 
the  value  of  the  premises  for  rent  during  the  time  the  same  had  been 
occupied  by  him.  The  court,  by  its  charge,  completely  eliminated  this 
defense  from  consideration  by  the  jury,  and  its  so  doing  is  assigned  as 
error  in  the  bill  of  exceptions. 

L  Undoubtedly,  by  bringing  the  above-described  action,  the  plain- 
tiff elected  to  treat  the  original  contract  between  himself  and  the  de- 
fendants as  rescinded.  This  being  so,  it  follows  as  a  necessary  legal 
consequence  that  the  defendants  were  entitled  to  plead  and  prove 
the  alleged  set-off.  "Where  the  plaintiff  seeks  to  recover  the  purchase 
money  paid  by  him  for  land,  treating  the  contract  of  sale  as  rescinded, 
he  must  account  for  the  value  of  the  use  thereof  whilst  he  was  in  pos- 
session." McDonald  v.  Beall,  55  Ga.  288.  And  see  Wilson  v.  Burks, 
71  Ga.  862.  The  case  in  hand  is  controlled  by  the  principle  laid  down 
in  the  cases  just  cited,  and  there  would  be  no  difficulty  in  fortifying 
their  correctness  by  authorities  ad  nauseam. 

2.  The  statute  of  frauds  manifestly  has  no  bearing  upon  the  pres- 
ent case.    Judgment  reversed.®^ 

81  In  Ankeny  v.  Clark  (1S92)  148  U.  S.  345,  359,  13  Sup.  Ct.  617,  37  U  Ed. 
475,  a  contract  entered  into  by  defendant  to  convey  to  plaintiff  two  quarter 
sections  of  land  in  exchange  for  12,000  bushels  of  wheat  was  repudiated  by 
the  defendant  after  delivery  to  him  of  the  wheat.  Plaintiff  brought  assumpsit 
for  the  value  of  the  wheat,  and  defendant  contended  (inter  alia)  that  plaintiff 
should  be  charged  and  defendant  credited  with  the  rental  value  of  the  land 
during  the  period  that  plaintiff  was  in  possession.  The  court  held  that  "the 
plaintiff  was  not  in  possession  as  a  tenant,  or  under  any  agreement  to  pay 
rent;  nor  does  the  law,  under  the  circumstances  of  the  case,  raise  any  obliga- 
tion to  pay  rent." 

In  Kicks  v.  State  Bank  of  Lisbon  (1904)  12  N.  D.  576,  98  N.  W.  408,  the 
court  said :  "The  object  to  be  sought  by  the  judgment  in  the  case  is  to  place 
the  parties,  as  nearly  as  possible,  in  statu  quo.  If  no  possession  is  gained  un- 
der the  contract,  and  money  has  been  paid,  the  general  rule  of  damages  in 
this  class  of  action  is  the  money  paid  with  interest.     If  possession  be  taken 


Sec.  4)  REPUDIATION   OR  SUBSTANTIAL   BREACH  371 

WILKINSON  V.  FERREE. 

(Supreme  Court  of  Pennsylvania,  1855.    24  Pa,  190.) 

Error  to  the  District  Court,  Philadelphia. 

George  Ferree  brought  suit  to  recover  $300  and  interest,  for  rent 
claimed  as  due  him  by  Wilkinson.  The  latter  claimed  a  set  off,  to 
the  amount  of  $250,  being  one-half  the  sum  at  which  Ferree  had 
sold  to  him  the  fixtures  and  the  good-will  of  a  store.  These  had  been 
sold  for  $500,  which  Wilkinson  had  paid.  On  his  part  testimony  was 
offered  to  show  that  the  title  of  Ferree  to  one-half  of  the  fixtures  had 
failed.  On  Ferree's  part  witnesses  were  examined,  who  testified  that 
the  fixtures  were  in  fact  worth  only  from  $15  to  $25. 

The  judge  below  instructed  the  jury  that,  if  they  found  that  tlie  title 
to  the  part  of  the  fixtures  had  failed,  then  they  should  allow  as  an  off- 
set against  Ferree's  claim  the  real  value  of  the  articles  as  fixed  by  the 
testimony,  and  not  the  price  paid  by  Wilkinson  to  Ferree ;  that  the 
price  so  paid  was  not  conclusive.  To  this  instruction  exception  was 
taken :  and  it  was  assigned  for  error. 

The  jury  found  for  plaintiff  $300,  allowing  but  $18  for  the  fixtures. 

Black,  J.  One  of  these  parties  sold  the  other  certain  fixtures  in 
a  store  for  a  price  much  beyond  their  real  value.  The  vendor  had 
no  title  whatever  to  the  things  sold,  and  the  vendee  seeks  to  be  indem- 
nified for  his  loss.  The  question  is,  whether  he  can  recover  back  the 
sum  which  he  paid  for  the  fixtures,  or  whether  his  measure  of  damages 
must  be  restricted  to  their  actual  value. 

When  suit  is  brought  on  a  contract  and  in  affirmance  of  it,  the  ver- 
dict should  make  the  plaintiff  whole;  that  is,  put  him  in  as  good  a 
condition  as  if  the  contract  had  been  performed.  He  cannot  swell 
his  damages  by  proving  that  the  bargain  he  sues  on  was  a  bad  one. 
When  he  deals  in  morus  multicaulis  trees,  as  in  Smethurst  v.  Woolston, 
5  Watts  &  S.  109,  and  takes  the  guarantee  of  a  third  person  for  their 
delivery  at  a  subsequent  day,  and  the  price  falls  in  the  mean  time,  he 
can  recover  for  a  breach  of  the  guarantee  no  more  than  the  value  of 

by  the  vendee  under  the  contract,  and  such  possession  be  a  benefit,  some  cases 
allow  the  benefit  of  such  possession  to  be  counterclaimed  as  against  the  money 
paid.  Todd  v.  McLaughlin,  125  Mich.  268,  84  N.  W.  14(>;  Baston  v.  Clifford, 
68  111.  67,  18  Am.  Rep.  547.  The  general  rule,  however,  is  that  interest  on 
the  purchase  money  paid  and  the  use  of  the  land  under  the  contract  shall  off- 
set each  other.  In  case  the  whole  purchase  price  is  paid  when  possession 
is  taken,  this  rule  does  justice  between  the  parties  while  possession  continues. 
*  *  *  In  this  case  the  whole  of  the  purchase  price  of  the  land  was  not  paid 
by  the  vendee,  and  hence  the  rule  that  interest  on  the  purchase  price  shall 
balance  the  value  of  the  use  of  the  land  does  not  fully  compensate  the  de- 
fendant for  the  use  of  his  land.  But  the  plaintiff,  while  breaking  and  prepar- 
ing the  land  for  crops,  received  no  benefit  from  the  land  as  a  matter  of  fact 
She  did  not  receive  the  full  beneficial  use  of  the  land  as  a  residence  during 
any  of  the  time.  To  allow  her  the  use  of  the  land,  and  the  defendant  the 
use  of  the  money  without  interest,  is  as  practical  and  just  an  adjustment  of 
the  mutual  rights  of  the  parties  as  can  be  made  under  the  evidence  submitted 
in  the  case." 


372  BENEFITS   UNDER   CONTRACT   PARTIALLY   PERFORMED  (Cll.  3 

the  trees  when  they  should  have  been  dehvered ;  for  the  guarantor 
bound  himself  to  indemnify  the  purchaser  only  against  a  violation  of 
the  contract,  and  not  to  save  him  harmless  from  the  consequences 
of  an  absurd  speculation.  So  on  a  contract  to  deliver  wheat  at  a 
future  time,  the  measure  of  damages  for  its  violation  by  the  vendor 
is  the  price  of  tlie  wheat,  or  its  value  to  the  vendee,  not  at  the  date 
of  the  contract,  but  at  the  time  fixed  for  delivery.  If  Ithe  market  rises 
the  vendee  has  the  benefit  of  it,  and  if  it  sinks,  he  must  take  the  loss. 
1  Dyer,  82.  When  the  quality  of  an  article  is  warranted  by  the  seller, 
and  turns  out  to  be  inferior,  the  purchaser  may  demand  the  difference 
between  the  value  of  the  article  as  it  is,  and  as  it  was  warranted  to 
be.  Gary  v.  Gruman,  4  Hill  [N.  Y.]  625,  40  Am.  Dec.  299.  The  ven- 
dor of  a  lame  horse  warrants  him  sound.  In  an  action  on  the  war- 
ranty the  inquiry  is,  what  was  the  actual  value  of  such  a  horse  suppos- 
ing him  sound,  and  how  much  is  that  value  diminished  by  the  defect? 
The  vendor  is  entitled  to  the  price  because  he  bargained  for  it  fairly, 
and  the  vendee  is  entitled  to  a  sound  horse,  or  its  full  equivalent,  for 
the  same  reason.  The  consideration  upon  which  the  warranty  is  based 
may  be  more  or  less  than  what  a  sharp  trader  would  agree  to  take, 
but  this  neither  increases  nor  diminishes  the  obligation  to  make  the 
warranty  good.  In  either  case  the  vendee  is  entitled  to  as  much  money 
as,  when  added  to  a  lame  horse,  will  equal  the  actual  value  of  a  sound 
one. 

But  all  these  rules  apply  only  to  cases  where  the  suit  is  brought  on 
the  contract.  When  the  party  injured  has  a  right  to  treat  it  as  re- 
scinded and  sue  in  disaffirmance  of  it,  he  may  recover  back  his  pur- 
chase-money, or  so  much  of  it  as  he  has  paid.  This  distinction  is  not 
only  recognized,  but  strongly  laid  down,  and  earnestly  insisted  on  in 
Smethurst  v.  Woolston,  and  it  is  so  obviously  well  founded  in  rea- 
son that  it  needs  no  illustration.  It  is  not  necessary  now  to  classify 
or  enumerate  the  cases  in  which  a  purchaser  may  elect  to  sue  on  the 
contract,  or  to  disaffirm  it  by  an  action  for  the  purchase-money.  But 
the  plainest  of  all  cases  for  the  rescission  of  a  contract,  is  the  sale 
of  an  article  which  the  vendor  did  not  own,  and  had  no  right  to  sell. 
When  the  purchase-money  paid  on  such  a  contract  is  demanded  back 
the  vendor  cannot  say  to  the  injured  party,  "It  is  true  I  sold  you  what 
was  not  mine  to  sell,  but  I  sold  it  at  a  price  twenty-fold  greater  than 
it  was  worth,  and  I  claim  to  keep  the  difference  as  a  reward  for  my 
ingenuity."  In  Gharnley  v.  Dulles,  8  Watts  &  S.  361,  it  is  broadly  held 
that  the  purchaser  of  a  chattel  who  gets  no  title  may  recover  back 
his  money  without  proving  either  fraud  or  express  warranty.  This 
of  course  is  to  be  understood  as  of  a  case  in  which  the  suit  is  in  dis- 
affirmance of  the  contract.  In  the  present  case  the  claim  was  made  by 
way  of  set-off,  and  there  is  notliing  on  the  record  which  shows  the 
defendant  to  have  made  an  election  to  stand  upon  the  contract.  In  the 
absence  of  evidence  to  the  contrary,  we  must  presume  that  he  has 
chosen  to  do  what  is  most  consistent  witli  his  interests,  and  with  the 


Sec.  4)         REPUDIATION  OR  SUBSTANTIAL  BREACH  37:{ 

demand  he  makes  against  the  plaintiff,  namely,  to  rescind  the  contract. 
Having  done  this,  he  has  a  right  to  the  purchase-money  without  refer- 
ence to  the  value  of  the  articles  which  he  once  agreed  to  take  in  place 
of  it. 

It  is  proper  to  add  that  what  I  have  said  is  based  on  that  state  of 
the  facts  which  the  bill  of  exceptions  presents.  I  do  not  mean  to  say 
what  the  verdict  ought  to  be,  but  merely  that  tlie  judge  misinstructed 
the  jury,  when  he  confined  them  to  the  value  of  the  articles,  in  esti- 
mating what  the  defendant  should  be  allowed  for  the  fixtures  which 
he  alleges  that  he  bought,  but  never  got. 

Judgment  reversed  and  venire  facias  de  novo  awarded.®'* 


CLARK  V.  MANCHESTER. 

(Supreme  Court  of  New  Hampshire,  1872.     51  N.  H.  594.) 

Assumpsit  by  Geo.  W.  Clark  against  Manchester,  upon  the  com- 
mon counts,  and  a  quantum  meruit  for  work  and  labor.  The  plaintiff's 
claim  was  to  recover  for  services  as  a  laborer  on  the  city  farm,  from 
April  13,  1870,  to  October  23  of  the  same  year,  by  the  employment 
of  Joseph  Cross,  the  defendants'  agent.  The  evidence  tended  to  show 
an  employment  for  a  year  for  $300,  or  $25  per  month.  It  appeared 
that  the  plaintiff  had  drawn  his  pay  monthly,  at  the  rate  of  $25  per 
month,  from  the  city  treasury,  excepting  $23.08  due  on  the  last  month, 
which  has  been  ready  for  him  there  ever  since  he  left  tlie  defendants' 
employ,  but  which  he  declined  to  receive  because  he  has  claimed  that 
he  was  entitled  to  more.  The  plaintiff  left  the  defendants'  employ 
October  23,  1870;  and  it  was  a  question  in  dispute  whether  he  left 
voluntarily,  or  was  discharged  without  sufficient  cause.  The  court 
instructed  the  jury  that  if  they  found  the  hiring  to  be  for  a  year  from 
April  13,  whether  the  terms  of  the  contract  were  $25  per  month  or 
$300  per  year,  and  that  the  plaintiff  was  discharged  Oct.  23,  without 
sufficient  cause,  he  would  be  entitled  to  recover  so  much  as  his  serv- 
ices were  reasonably  worth  during  the  whole  period  he  worked,  de- 
ducting what  he  had  received,  and  also  deducting  the  $23.08,  in  case 
they  were  of  opinion  that  it  was  the  understanding  that  the  plaintiff 
should  go  to  the  city  treasury  and  there  draw  his  pay.  To  this  in- 
struction the  defendants  excepted,  on  the  ground  that  all  claims  were 
settled  and  discharged  by  payment  and  acceptance  of  pay  by  the  plain- 
tiff, at  the  rate  of  $25  per  month,  up  to  about  October  1 ;  that  in  no 
event  could  the  plaintiff  be  entitled  to  recover  on  a  quantum  meruit 
for  more  than  the  last  month's  work. 

The  verdict  was  for  the  plaintiff  for  $109.33,  which  includes  the 

82  Accord :    Nash  v.  Towne  (1866)  5  Wall.  6S9,  IS  L.  Ed.  527. 
Contra:   Dutch  v,  Warren  (K.  B.  1720)  2  Burr.  1010.     (Stated  by  Lord  Mans- 
field in  Moses  v.  Macferlan,  at  page  20,  supra.) 


374  BENEFITS   UNDER   CONTRACT   PARTIALLY   PERFORMED  (Cll.  3 

$23.08,  the  jury  being  of  opinion  that  it  was  not  part  of  the  contract 
that  the  plaintiff  should  draw  his  pay  at  the  city  treasury. 

The  case  was  reserved. 

Sargent,  J.  The  jury  have  found,  upon  the  instructions  given 
them,  that  the  contract  was  to  work  for  a  year  for  $300,  or  at  tlie  rate 
of  $25  per  month  for  the  whole  year,  and  that  the  plaintiff  received 
his  $25  per  month  up  to  October,  and  was  turned  away,  without  suffi- 
cient cause,  at  that  time.  In  other  words,  the  city  broke  or  rescinded 
its  contract  with  the  plaintiff  at  the  end  of  about  six  months,  and  after 
the  plaintiff  had  worked  through  the  very  best  of  the  season.  He  had 
worked  during  those  months  when  he  could  have  earned  $30  or  $35  per 
month,  whereas  for  the  balance  of  the  year  he  might  not  be  able  to 
earn  more  than  $15  or  $20  per  month. 

If  he  had  continued  the  year  out,  and  had  gone  every  month  and 
received  his  $25,  that  would  have  completed  the  contract  on  both  sides, 
and  that  sum,  by  the  month  for  the  whole  year,  would  have  been  pay- 
ment in  full  for  his  services ;  yet,  when  the  defendants  rescind  the  con- 
tract in  the  midst  of  the  term,  without  sufficient  cause,  they  cannot 
claim  that  the  payments  which  have  been  made,  though  at  the  rate 
per  month  stipulated  for  the  whole  time,  shall  be  received  in  full  for 
the  services  rendered,  if  those  services  were  worth  much  more  for 
that  time  than  the  average  for  the  year. 

The  contract  is  to  be  construed  as  a  whole.  It  is  not  $25  per  month 
for  a  single  month,  or  for  each  separate  month,  or  for  any  number 
of  months  less  than  the  year.  The  contract  being  entire,  the  defend- 
ants cannot  break  one  part  of  it  and  still  insist  upon  the  performance 
of  the  other  part.  When  the  defendants  rescinded  the  contract,  they 
put  it  out  of  their  power  to  enforce  it  upon  the  other  party,  but  the 
other  party  may  consider  it  as  rescinded  and  claim  pay  just  as  though 
it  had  never  existed,  which  will  be  just  what  he  is  claiming  here,  name- 
ly, to  recover  what  his  services  were  worth  for  the  time  he  labored. 

The  error  of  the  defendants'  counsel  in  their  brief  is  in  assuming 
that  here  was  payment  made  by  the  defendants  and  received  by  the 
plaintiff  in  full  for  the  services  of  each  month.  The  defendants  can- 
not hold  the  plaintiff  to  the  agreed  price  per  month  only  in  connection 
with  the  other  part  of  the  contract,  viz.,  that  the  employment  should 
continue  at  the  same  rate  for  the  whole  year.  Where  one  party  to  a 
special  contract,  which  is  executory,  refuses  to  execute  any  substantial 
part  of  his  agreement,  the  other  party  may  rescind,  if  he  do  so  un- 
equivocally and  in  reasonable  time.  Webb  v.  Stone,  24  N.  H.  288 ; 
Allen  V.  Webb,  24  N.  H.  278;  Weeks  v.  Robie,  42  N.  H.  316,  and 
cases  cited;  Danforth  v.  Dewey,  3  N.  H.  79;  Judge  of  Probate  v. 
Stone,  44  N.  H.  593. 

This  contract  was  executory,  in  that  it  was  to  be  continued  for  a 
year ;  and  when  the  defendants  broke  it  in  this  respect,  they  cannot 
hold  the  plaintiff  bound  by  the  other  provisions  of  it.  The  plaintiff 
had  the  right  to  rescind  the  whole  contract,  and  sue  in  indebitatus  as- 


Sec,  4)  REPUDIATION   OR   SUBSTANTIAL   BREACH  375 

sumpsit  to  receive  back  a  consideration  paid,  or  on  a  quantum  meruit 
to  recover  what  his  services  were  worth.     This  is  the  same  forai  of 
action  as  in  Britton  v.  Turner,  6  N.  H.  481,  26  Am.  Dec.  713. 
Judgment  on  the  verdict.®' 


DAVIDSON  V.  LAUGHLIN. 

(Supreme  Court  of  California,  1903.     138  Cal.  320,  71  Pac.  345,  5  L,  R.  A. 

[N.  S.]  570.) 

Appeal  from  superior  court,  Los  Angeles  county;  J.  W.  Mahon, 
Judge. 

McFarland,  J.®*  This  is  an  appeal  by  defendant  from  a  judgment 
in  favor  of  plaintiff  and  from  an  order  denying  a  motion  for  a  new 
trial.  The  action  is  for  the  recovery  of  the  reasonable  value  of  certain 
services  rendered  by  plaintiff  to  defendant.  These  facts  were  averred 
in  the  complaint  and  found  by  the  court :  Plaintiff  was  in  the  employ- 
rnent  of  defendant  from  the  1st  day  of  October,  1896,  to  the  25th 
day  of  July,  1898;  but  for  services  rendered  prior  to  May  1,  1897, 
plaintiff  was  paid,  and  they  form  no  part  of  the  matters  here  in  liti- 
gation. As  to  what  plaintiff  was  to  receive  for  his  services  after  May 
1,  1897,  there  was  no  express  agreement  between  the  parties  until  June 
20th  of  that  year.  Defendant  was  then  engaged  in  the  erection  of  a 
six-story  building,  and  it  was  in  connection  with  this  building,  and 
some  other  matters,  that  plaintiff  was  employed.    The  parties,  on  said 

83  In  Clark  v.  Jlayor  of  New  York  (1S50)  4  N.  Y.  330,  53  Am.  Dec.  379,  the 
plaintiff,  a  contractor,  agreed  to  excavnte  rock  in  a  certain  section  of  the 
Croton  Aqueduct  at  the  rate  of  one  dollar  per  cuhie  yard.  After  part  per- 
formance by  plaintiff,  the  defendant  arbitrarily  annulled  the  conti'act.  I'lain- 
tiff  had  completed  the  most  difficult  portion  of  the  work,  part  of  the  excavat- 
ing done  by  him  being  worth  !$4.'20  per  cubic  yard  and  part  worth  $1.20,  while 
the  excavating  not  yet  completed  would  cost  only  about  thirty-tive  cents  per 
cubic  yard.  Held  that  in  an  action  for  work  and  labor  plaintiff  could  re- 
cover what  the  work  done  was  actually  worth. 

In  Wellston  Co:il  Co.  v.  Franklin  Taper  Co.  (1F97)  57  Ohio  St.  1S2.  4S  N.  E. 
888,  in  order  to  obtain  a  permanent  n)arket  for  his  coal  for  a  certain  time, 
plaintiff  had  contracted  in  writing  to  deliver  to  defendant  and  defendant  had. 
agreed  to  take  all  the  coal  the  latter  might  need  in  its  business  for  the  period 
of  one  year  at  a  fixed  price  per  ton.  As  was  known  to  both  parties,  the  market 
price  of  coal  varied  with  the  season,  being  higher  in  the  fall  and  winter  months 
than  during  the  rest  of  the  year.  IMaintiff'  furnished  coal  to  defendant  during 
the  fall  and  winter  and  was  paid  therefor  under  the  contract,  the  contract 
rate  being  less  than  the  market  price  of  coal  at  that  time.  In  the  sju'ing 
the  defendant  wrongfully  terminated  the  contract  and  refused  to  receive  nny 
more  coal,  the  contract  and  the  market  price  being  then  about  the  same.  Held, 
that  the  |)laintiff  might  waive  the  contract  and  recover  on  a  (piantum  meruit 
Hie  amount  by  which  the  market  price  of  the  coal  delivered  exceeded  the  con- 
tract price;  the  court  saying,  "In  the  case  before  us  justice  and  fair  dealing 
require  that  the  defendant,  having  repudiated  the  contract,  should  pay  the 
market  price  for  the  coal  at  the  time  it  was  delivered." 

See,  also,  in  accord,  McQueen  v.  (Jamble  (1S76)  33  Mich.  344;  Caldwell  v. 
Myers  (1802)  2  S.  D.  500,  51  N.  W.  210. 

94  A  portiou  of  the  opinion,  discussing  the  admissibility  of  certain  evidence, 
is  omitted. 


37G  BENEFITS   UNDER   CONTRACT   PARTIALLY   PERFORMED  (Cll.  3 

June  20th,  had  a  conference  about  what  plaintiff's  compensation  should 
be  during  tlie  progress  of  tlie  construction  of  the  building,  which  re- 
sulted in  a  contract  that  when  the  building  should  be  completed  and 
the  tenants  should  commence  to  pay  rent,  plaintiff  should  be  perma- 
nently employed  by  defendant  as  his  agent  in  the  management  of  the 
building,  "keeping  the  same  rented,  and  collecting  the  rents,  and  at- 
tending to  the  repairs  and  all  other  useful  services  in  the  proper  man- 
agement of  the  said  building,"  and  that  defendant  would  pay  for  his 
services  as  such  agent  $150  per  month;  and  plaintiff,  in  consideration 
that  he  be  so  employed  as  agent  after  the  completion  of  the  building, 
and  paid  said  compensation,  agreed  that  he  would  take  for  his  serv- 
ices from  May  1,  1897,  to  the  time  of  tlie  completion  of  the  building, 
$60  per  month.  The  building  was  completed  and  tenants  commenced 
to  pay  rent  on  July  12,  1898;  but  on  July  25th, — 13  days  later, — 
"without  any  reasonable  or  lawful  cause  or  excuse  whatever,  the  de- 
fendant discharged  plaintiff  from  his  employment,"  and  has  ever  since 
refused  to  allow  him  to  perform  any  services  as  such  agent,  or  to  pay 
him  therefor.  The  reasonable  value  of  the  plaintiff's  services  from 
May  1,  1897,  to  the  time  of  his  discharge  on  July  25,  1898,  was  $150 
per  month,  amounting  to  $2,225.  Of  this  amount  $500  had  been  paid, 
and  the  court  rendered  judgment  for  the  balance. 

The  main  contention  of  appellant  is  that  the  findings  of  the  court  of 
the  foregoing  facts  are  not  sustained  by  the  evidence ;  but  this  con- 
tention cannot  be  maintained.  There  was  a  conflict  of  evidence  as  to 
what  the  contract  between  the  parties  was,  and  as  to  the  reasonable 
value  of  respondent's  services,  etc. ;  but  tliere  was  certainly  evidence 
supporting  respondent's  contention  on  every  issue  of  fact,  which  we 
cannot  say  was  insufficient  to  warrant  the  finding. 

As  to  the  questions  of  law  involved  in  the  case,  it  seems  clear  that, 
as  the  agreement  of  appellant  to  employ  respondent,  as  agent  of  the 
building  after  its  completion  at  the  agreed  compensation  was  the  con- 
sideration of  the  latter's  agreement  to  take  $C0  per  month  for  his  previ- 
ous services,  the  failure  of  appellant  to  so  employ  respondent  was  a 
breach  of  the  contract,  which  released  the  latter  therefrom,  and  au- 
thorized him  to  treat  it  as  rescinded,  and  to  recover  for  his  services 
what  they  were  reasonably  worth.  This,  of  course,  is  the  general 
rule  applicable  to  such  case,  and  it  is  too  elementary  to  need  reference 
to  authorities.  It  is  contended,  however,  tliat  the  rule  does  not  apply 
in  the  case  at  bar,  because  the  contract  for  permanent  employment 
was  only  for  an  indefinite  time,  tliat  it  cannot  be  specifically  enforced, 
and  that  it  could  be  terminated  by  either  party  upon  reasonable  notice. 
But  this  is  not  an  action  to  compel  a  specific  performance  of  the  con- 
tract for  employment  after  the  completion  of  the  building,  nor  to  re- 
cover compensation  for  his  services  after  such  completion,  nor  to  re- 
cover future  profits  which  respondent  might  have  earned  after  that 
time  if  appellant  had  complied  with  his  said  promise  of  future  employ- 
ment.   The  action  is  for  services  rendered  prior  to  the  time  when  the 


Sec.  4)  REPUDIATION  OR  SUBSTANTIAL  BREACH  377 

future  employment  at  $150  was  to  commence.  It  is  based  upon  the 
theory  that  appellant's  promise  of  the  future  employment  was  the 
consideration  of  respondent's  promise  to  do  the  previous  work  for  a 
compensation  much  less  than  its  real  value,  that  each  of  said  promises 
was  part  of  the  contract,  and  that  appellant's  refusal  to  perform  his  said 
promise  abrogated  the  contract,  and  entitled  respondent  to  recover  the 
reasonable  value  of  his  past  services.  This  theory  is  well  founded  in 
legal  principles,  as  it  is  in  considerations  of  justice  and  fair  deal- 
in&r.     *     *     * 

The  judgment  and  order  appealed  from  are  affirmed. 


KEHOE  V.  RUTHERFORD. 
(Supreme  Court  of  New  Jersey,  1893.     56  N.  J.  Law,  23,  27  Atl.  912.) 

Action  on  a  contract  by  John  Kehoe  against  the  mayor  and  common 
council  of  the  borough  of  Rutlierford. 

Heard  on  a  rule  to  show  cause  why  a  new  trial  should  not  be  granted 
after  order  of  nonsuit. 

Dixon,  J.  On  October  15,  1888,  the  plaintiff  and  defendant  entered 
into  a  written  contract,  under  seal,  by  which  the  plaintiff  became 
bound  to  grade,  work,  shape,  level,  smooth,  and  roll  Montrose  avenue, 
in  the  borough  of  Rutherford,  to  its  entire  width,  according  to  the  es- 
tablished grade,  commencing  at  Washington  avenue,  and  ending  at 
Pierpont  avenue,  and  the  defendant  became  bound  to  pay  him  there- 
for 65  cents  per  lineal  or  running  foot. 

Soon  afterwards,  the  plaintiff  began  the  work,  and  continued  until 
it  was  discovered  that  some  of  the  land  to  be  graded  under  the  con- 
tract was  private  property.  Then,  being  forbidden  by  the  owners  to 
enter  upon  this  property,  the  plaintiff  stopped  the  work,  by  direction  of 
the  borough  authorities,  and  concluded  to  abandon  it.  In  the  mean 
time,  he  had  been  paid  $1,850  of  the  contract  price. 

On  this  state  of  facts,  he  brought  suit  against  the  defendant,  rely- 
ing, in  one  count  of  his  declaration,  upon  the  breach  of  the  special 
contract,  and,  in  another,  on  the  quantum  meruit  for  the  work  done. 

At  the  trial  in  the  Bergen  circuit  the  plaintiff's  evidence  tended  to 
prove  that  the  length  of  the  whole  work  required  by  the  contract  was 
4,220  feet,  which,  at  the  contract  rate, — 65  cents  per  lineal  foot, — 
made  the  aggregate  price  $2,743 ;  that  about  3,500  feet  in  length  had 
been  substantially  graded,  but  still  needed  trimming  up  and  finishing ; 
that  in  doing  this  work  he  had  excavated  about  8,000  cubic  yards  of 
earth,  and  had  put  in  about  1,300  cubic  yards  of  filling;  that,  to  com- 
plete the  job,  about  14,000  cubic  yards  of  filling  were  still  necessary, 
besides  the  trimming  up  and  finishing  of  the  entire  lengtli  of  the  street. 
His  evidence  further  indicated  tliat  the  fair  cost  of  the  work  done 
was: 


378      BENEFITS  UNDER  CONTRACT  PARTIALLY  PERFORMED    (Ch.  3 

8,000  cubic  yards  of  excavation,  at  35  cents $2,800 

900  cubic  yards  of  filling,  at  21  cts 189 

400  cubic  yards  of  filling,  at  41  cts 164 

I 
Making  a  total  of $3,153 

— and  that  the  fair  cost  of  the  work  remaining  to  be  done,  in  complete- 
ly performing  the  contract,  was  : 

14,000  cubic  yards  of  filling,  at  12  cents $1,680 

4,220  feet  of  finishing,  at  5  cents 211 

Making  a  total  of $1,891 

— thus  showing  the  fair  cost  of  the  whole  work  required  by  the  con- 
tract to  be  $5,044. 

These  calculations  are,  in  every  instance,  based  upon  the  testimony 
most  favorable  to  the  plaintiff;  allowing  him  the  highest  estimates 
for  what  he  had  done,  and  reckoning  the  residue  at  the  lowest.  If  his 
own  estimates,  or  those  of  any  single  witness,  were  taken  throughout, 
the  result  would  be  more  to  his  disadvantage. 

Upon  tbe  evidence  thus  presented,  the  plaintiff  was  nonsuited,  and 
a  rule  allowed  that  the  defendant  show  cause  why  a  new  trial  should 
not  be  awarded. 

The  nonsuit  was  ordered  upon  the  theory  that  the  plaintiff  could 
recover,  for  the  work  done,  only  such  a  proportion  of  the  contract 
price  as  the  fair  cost  of  that  work  bore  to  the  fair  cost  of  the  whole 
work  required,  and,  in  respect  of  the  work  not  done,  only  such  profit, 
if  any,  as  he  might  have  made  by  doing  it  for  the  unpaid  balance  of 
the  contract  price.  Under  this  theory,  his  recovery  for  the  work  done 
was  to  be  limited  to  such  a  proportion  of  $2,743  as  3,153  bears  to 
5,044,  viz.  $1,715 ;  and  as  to  the  work  not  done,  since  it  would  cost  him 
$1,891  to  do  it,  while  the  unpaid  balance  of  the  price  was  only  $893, 
no  profit  could  be  earned  by  doing  it.  Hence,  it  was  considered  that 
he  had  been  overpaid  to  the  extent  of  the  difference  between  $1,850 
and  $1,715. 

But  the  contention  of  the  plaintiff  was  and  is  that,  as  he  was  pre- 
vented from  completing  the  contract  without  fault  on  his  part,  he  is 
entitled  to  the  reasonable  value  of  the  work  done,  without  reference 
to  the  contract  price ;  and  if  this  be  tlie  correct  rule,  undoubtedly  the 
case  should  have  gone  to  the  jury.  But,  at  the  very  threshold,  we  are 
confronted  with  this  possible  result  of  the  application  of  the  rule  con- 
tended for:  That  the  plaintiff  might  recover  $3,153  for  doing  about 
three-fifths  of  the  work,  while,  if  he  had  done  it  all,  he  could  have  re- 
covered only  $2,743.  The  absurdity  of  the  result  condemns  the  applica- 
tion of  such  a  rule.  Circumstances  may  exist  in  which,  for  work  done 
under  a  special  contract,  the  plaintiff  will  recover  its  fair  value.  Thus, 
if  the  contract  be  within  the  prohibition  of  the  statute  of  frauds,  (Mc- 
Elroy  V.  Ludlum,  32  N.  J.  Eq.  828 ;)  or  if,  the  work  being  only  partly 
done,  that  which  is  done,  or  that  which  is  left  undone,  cannot  be 
measured,  so  as  to  ascertain  its  price  at  the  rate  specified  in  the  con- 


Sec.  4)  REPUDIATION   OR   SUBSTANTIAL   BREACH  379 

tract,  (Derby  v.  Johnson,  21  Vt.  17,)  or,  in  the  absence  of  evidence  to 
the  contrary,  it  may  be  assumed  that  the  rate  specified  is  a  reasonable 
one,  (U.  S.  V.  Behan,  110  U.  S.  338,  4  Sup.  Ct.  81,  28  L.  Ed.  168). 
But,  generally,  when  it  can  be  determined  what,  according  to  the  con- 
tract, the  plaintiff  would  receive  for  that  which  he  has  done,  and  what 
profit  he  would  have  realized  by  doing  that  which,  without  fault,  he 
has  been  prevented  from  doing,  then  these  sums  become  the  legal,  as 
tliey  are  the  just,  measure  of  his  damages.  He  is  to  lose  nothing,  but, 
on  the  other  hand,  he  is  to  gain  nothing,  by  the  breach  of  the  con- 
tract, except  as  the  abrogation  of  a  losing  bargain  may  save  him  from 
additional  loss. 

This  is  the  rule  applied  in  the  case  of  Masterton  v.  Mayor,  etc.,  of 
Brooklyn,  7  Hill  (N.  Y.)  61,  42  Am.  Dec.  38,  where  the  plaintiff  was 
to  receive  $271,600  for  88,819  feet  of  marble,  and  after  he  had  de- 
livered 14,779  feet  the  defendant  stopped  him.  He  was  awarded  the 
contract  price  for  the  14,779  feet,  and  the  profit  which  he  would  have 
made  by  delivering  the  balance.  The  same  principle  was  declared  by 
this  court  in  Boyd  v.  Meighan,  48  N.  J.  Law,  404,  4  Atl.  778,  and  ac- 
cords with  the  fundamental  doctrines  laid  down  by  Mr.  Sedgwick,  (1 
Sedg.  Dam.  [200]  432:)  First,  that  the  plaintiff  must  show  himself  to 
have  sustained  damage,  or,  in  other  words,  that  actual  compensation 
will  only  be  given  for  actual  loss ;  and,  second,  that  the  contract  itself 
furnishes  the  measure  of  damages. 

Sometimes  it  has  been  held  that  if  the  contract  binds  the  defendant 
to  pay  otherwise  than  in  money,  and  he  refuses,  then  the  plaintiff  may 
recover  the  cash  value  of  what  he  has  done  or  delivered.  Ankeny  v. 
Clark,  148  U.  S.  345,  13  Sup.  Ct..  Rep.  617,  37  L.  Ed.  475.  But  in 
New  Jersey  the  rule  is  that  he  shall  recover  the  cash  value  of  what  he 
was  to  receive,  (Hinchman  v.  Rutan,  31  N.  J.  Law,  496,)  thus  main- 
taining the  standard  fixed  by  the  contract. 

Some  of  the  obscurity  surrounding  this  subject  springs,  I  think, 
from  a  failure  to  distinguish  between  the  right  to  sue  upon  the  quan- 
tum meruit,  when  the  contract  remains  uncompleted  through  the  fault 
of  the  defendant,  and  the  measure  of  damages  in  such  a  state  of  facts. 
It  is  well  settled  that  if  the  plaintiff  has  fully  performed  his  contract, 
so  that  nothing  remains  but  the  duty  of  the  defendant  to  pay,  the 
plaintiff  may  declare  upon  the  quantum  meruit,  ignoring  the  special 
contract,  and  the  plaintiff's  readiness  and  offer  to  perform  are  to  this 
extent,  but  to  this  extent  only,  (Shannon  v.  Comstock,  21  Wend.  [N. 
Y.]  457,  34  Am.  Dec.  262)  equivalent  to  actual  performance.  In  both 
cases,  however,  the  amount  which  the  plaintiff  deserves  to  recover  is 
regulated  by  the  contract.  The  refusal  of  the  defendant  to  pay,  after 
all  the  work  is  done,  is  no  less  a  breach  of  the  contract  than  is  his 
refusal  to  permit  the  plaintiff  to  do  all  that  the  bargain  entitled  him  to 
do;  but  neit)ier  breach  does  or  ought  to  put  the  parties  in  the  position 
they  would  have  occupied  if  no  contract  had  been  made.    In  botli  cases. 


380      BENEFITS  UNDER  CONTRACT  PARTIALLY  PERFORMED    (Ch.  3 

what  is  done  was  done  under  the  contract,  and  should  be  paid  for  ac- 
cordingly. 

If,  on  partial  performance,  the  plaintiff  confines  himself  to  the  com- 
mon counts,  he  excludes  by  his  pleading  any  claim  for  what  he  has 
not  performed,  but  he  does  not  tliereby  enhance  his  deserts  for  what 
he  has  performed;  and  therefore,  in  order  to  obtain  complete  justice 
on  breach  of  a  profitable  bargain,  he  must  resort  to  a  special  count. 

Our  conclusion  is  that,  as  the  plaintiff  had  been  paid  up  to  the  full 
measure  of  the  contract  for  the  work  done,  and  could  have  made  no 
profit  by  its  further  prosecution,  the  nonsuit  was  substantially  right. 
The  rule  to  show  cause  is  discharcred.*" 


MOONEY  V.  YORK  IRON  CO. 
(Supreme  Court  of  Michigan,  1S90.     82  Mich,  263,  46  N.  W.  376.) 

Assumpsit.     Defendant  brings  error. 

Cahill,  J."®  The  plaintiff's  brought  an  action  in  justice's  court  to 
recover  an  amount  claimed  to  be  due  them  for  work  and  labor  per- 
formed in  sinking  a  mining  shaft  for  the  defendant.  The  plaintiffs  re- 
covered a  judgment  in  justice's  court,  and  the  defendant  appealed  to 
the  circuit,  when  the  plaintiffs  again  had  judgment,  and  the  case  is 
brought  to  this  court  on  writ  of  error.  The  case  made  by  the  plaintiffs 
is  that  they  made  a  contract  with  defendant  through  Capt.  Florida, 
who  was  at  the  time  superintendent  of  the  defendant  company,  by 
which  they  were  to  sink  a  shaft  8  by  11  feet,  down  to  the  "ledge,"  and 
timber  the  same  up;  plaintiffs  to  furnish  everything,  and  to  be  paid  $10 
per  foot.  They  claimed  that  they  sunk  the  shaft  to  the  "ledge,"  and 
had  timbered  it  to  within  8  or  10  inches  of  the  "ledge,"  when  they 
were  stopped  in  their  work  by  Capt.  Carlin,  who,  as  they  claim,  had 
immediate  charge  of  the  mining  operations  for  the  defendant.     They 

»8  Accord:  Dobbins  v.  Higsjins  (1875)  78  111.  440;  Doollttle  v.  IMcCullough 
(1861)  12  Ohio  St.  300,  306;  Noyes  v.  Pugin  (1801)  2  Wash.  053,  27  Pac.  548. 
In  the  case  last  cited  the  court  said :  "if  [the  plaintiff]  had  performed  the 
whole  work  according  to  his  agreement,  and  appellant  had  neglected  or  refused 
to  pay  him  therefor,  and  he  had  brought  his  action  upon  tlie  common  counts 
for  worlj  and  labor,  instead  of  suing  upon  the  contract,  tlie  measure  of  re- 
covery, according  to  the  adjudged  cases,  would  have  been  the  contract  price. 
And,  ttiis  being  so,  it  is  difficult  to  perceive  why  the  respondent  in  this  case 
should  receive  more  compensation  for  the  labor  actually  performed  by  him 
than  he  would  have  received  for  the  same  services  had  the  contract  not  been 
broken  by  the  appellant.  The  authorities  which  hold  the  contrary  doctrine, 
and  maintain  tliat  the  plaintiff  in  such  cases  may  recover  what  his  labor 
was  actually  worth,  without  regard  to  the  contract,  proceed  upon  the  theory 
that,  if  one  party  to  an  agreement  sees  fit  to  violate  it,  the  law  will  then  step 
in  and  imply  a  new  and  different  one  in  favor  of  the  other  party  to  the  con- 
tract. But  we  think  it  is  rather  the  province  of  the  law  to  provide  remedies 
for  enforcing  contracts,  and  for  indemnifying  parties  injured  by  their  breach, 
than  to  make  new  and  different  ones." 

See,  also,  Farnum  v,  Kennebec  Water  District  (1909)  170  Fed.  173,  9c  C. 
C.  A.  355. 

»8  Portions  of  the  opinion,  discussing  another  matter,  are  omitted. 


Sec.  4)  REPUDIATION  OR  SUBSTANTIAL  BREACH  381 

claim  the  right  to  recover  for  the  work  actually  done  by  them  under 
the  quantum  meruit  on  the  ground  that  they  were  prevented  by  the  de- 
fendant, without  fault  on  their  part,  from  performing  the  contract. 
The  case  was  submitted  to  the  jury  by  the  circuit  judge  upon  this 
theory,  and  the  jury  were  instructed  as  follows: 

"It  is  tlie  law  that  if  an  employer  terminate  a  contract  without  any 
fault  on  the  part  of  the  employe  or  contractor,  that  then  the  employe 
or  contractor  may  sue  upon  the  contract  to  recover  damages,  or  he 
may  sue  in  assumpsit  upon  the  common  counts,  as  they  are  called — the 
quantum  meruit — to  recover  what  his  services  were  worth.  That  does 
not  mean  what  they  were  worth  to  the  employer.  It  is  the  fair  value ; 
that  is,  the  value  of  work  and  labor.  Of  course,  the  main  question  is 
first  as  to  whether  the  contract  was  performed  up  to  that  time  by  the 
plaintiffs.  If  it  was  not,  then  the  defendant  had  the  right  to  stop  the 
work,  and  discharge  them,  and  they  could  not  recover.     *     *     * 

Counsel  for  defendant  objects  to  that  part  of  the  above  charge  in 
which  the  court  said  "the  plaintiffs  might  recover  upon  a  quantum 
meruit  what  their  services  were  worth ;  that  this  does  not  mean  what 
they  were  worth  to  the  defendant,  but  the  fair  value  of  the  work  and 
labor ;"  and  it  is  claimed  that  the  true  basis  of  recovery  in  such  cases  is 
not  the  value  of  the  work  and  labor,  but  of  the  product  of  the  work 
and  labor.  We  think  the  circuit  judge  adopted  the  correct  rule.  If  the 
plaintiff's  had  abandoned  the  work,  without  being  directed  to  do  so 
by  the  defendant,  and  the  defendant  had  appropriated  the  work  to  its 
own  use,  the  rule  contended  for  by  defendant's  counsel  would  have 
been  correct.  That  rule  was  recognized,  and  clearly  stated  by  the  cir- 
cuit judge  in  his  charge.  But  where,  as  in  this  case,  the  plaintiffs  are 
prevented  from  performing  the  contract,  they  are  entitled  to  recover, 
if  at  all,  what  their  work  and  labor  is  worth,  whether  it  was  of  value 
to  the  defendant  or  not.  The  case  of  Clark  v.  Mayor,  etc.,  4  N.  Y.  338, 
53  Am.  Dec.  379,  cited  by  defendant's  counsel,  does  not  support  a  con- 
trary doctrine.     *     *     * 

The  judgment  is  affirmed,  with  costs.'^ 

«7  Ar-covd  :  Hemminser  v.  Western  Assurance  Co.  (1S93)  95  Mich.  355,  54  N. 
W.  949.  r' Where  the  party  suing  is  not  responsible  for  the  breach,  neither  the 
right  nor  the  amount  of  tlie  recovery  depends  upon  the  measui-e  of  benefit  re- 
ceived by  the  party  .guilty  of  the  breach.") 

Compare  Fabiau  v.  Wasatch  Orchard  Co.,  page  331,  supra. 

In  Hosmer  v.  Wilson  (1S59)  7  Mich.  294,  74  Am.  Dec.  716,  the  plaintiff  agreed 
to  manufacture  for  the  defendant  an  engine  for  a  certain  price.  Before  tli(> 
engine  was  completed  the  order  was  countermanded  by  the  defendant  and 
the  materials  remained  in  the  plaintiff's  hands.  It  was  heM  that  the  plain- 
tiff could  not  recover  on  the  common  counts  the  value  of  his  labor  and  of  sut-h 
materials,  on  the  ground  that  the  defendant  had  no  interest  in  the  materials, 
and  no  concern  with  the  amount  of  labor ;  but  that  tlie  plaintiff's  labor  was 
upon  his  ov\Ti  materials  to  increase  their  value,  for  the  purpose  of  effecting 
a  sale  to  the  defendant  of  the  article  ordered,  when  complete. 

See,  to  the  same  effect,  Atkinson  v.  Boll  (1S2S)  8  B.  &  C.  277,  283 ;  Manning 
Mfg.  Co.  v.  Miller  Bros.  (1914)  87  Vt.  455,  89  Atl.  479.  Compare  Dowling  v. 
McKinney,  p'age  32S,  supra. 


382  BENEFITS   UNDER   CONTRACT   PARTIALLY   PERFORMED  (Ch.  3 

FARRON  V.  SHERWOOD. 

(Court  of  Appeals  of  New  York,  1858.     17  N.  Y.  227.) 

Appeal  from  the  Superior  Court  of  Buffalo.     The  complaint  was: 

"First,  That  the  defendant  is  indebted  to  the  plaintiff  in  the  sum  of 
fourteen  hundred  and  twenty-nine  and  54/100  dollars,  for  work,  labor 
and  services  done  and  performed  for  the  defendant,  at  his  special  in- 
stance and  request,  at  the  city  of  Buffalo,  by  the  plaintiff  and  his  serv- 
ants and  agents,  at  divers  times  between  the  8th  day  of  March,  1852, 
and  the  commencement  of  this  action,  in  and  about  quarrying,  dressing, 
preparing,  delivering,  putting  together  and  erecting  certain  building 
stones,  in  and  about  defendant's  dwelling  on  Main-street,  in  said  city 
of  Buffalo,  and  that  the  said  work,  labor  and  services  were  reasonably 
worth  the  sum  of  fourteen  hundred  and  seventy-nine  and  54/100  dol- 
lars; and  that  the  defendant  has  not  paid  the  plaintiff  the  said  sum  nor 
any  part  thereof,  but  has  hitherto  wholly  neglected  and  refused  so 
to  do. 

"Second.  And,  for  a  second  cause  of  action  against  the  defendant, 
the  plaintiff  says  that  the  defendant  is  indebted  to  him  in  the  sum  of 
thirty-eight  and  4/100  dollars,  for  certain  dressed  building  stones,  be- 
fore the  commencement  of  this  action  sold  and  delivered  by  the  plain- 
tiff to  the  defendant,  at  the  city  of  Buffalo,  at  defendant's  special  in- 
stance and  request;  that  the  said  building  stones  were  reasonably  worth 
the  said  sum  of  thirty-eight  and  4/100  dollars;  and  that  the  defendant 
has  not  paid  the  plaintiff  the  said  sum,  or  any  part  thereof,  but  has 
hitherto  wholly  neglected  and  refused  so  to  do.  Wherefore  the  plain- 
tiff demands  judgment  against  the  defendant  for  the  sum  of  fifteen 
hundred  and  seventeen  dollars  and  sixty-tliree  cents,  besides  the  costs 
of  this  action." 

The  defendant,  by  his  answer,  denied  each  and  every  allegation  of 
the  complaint.  The  action  was  tried  before  a  referee.  Upon  the  trial, 
the  plaintiff  produced  several  witnesses,  who  proved  the  work,  labor 
and  materials  specified  in  a  bill  of  particulars,  furnished  the  defendant, 
of  the  plaintiff's  claim,  and  the  value  of  the  different  items;  and  then 
rested.  Whereupon  the  defendant  proved  payment  of  $1002,  and  then 
proved  and  read  in  evidence  a  special  contract  between  him  and  the 
plaintiff,  under  which  the  labor,  except  sixty-four  days'  labor,  worth 
$2  a  day,  and  altering  a  buttress,  worth  $6,  was  done.  Upon  the  proof 
and  pleadings  the  cause  was  submitted  to  the  referee,  "the  defendant 
then  and  there  insisting  that  the  plaintiff  could  not  recover  but  for  the 
extra  work,  except  upon  the  special  contract,  which  he  had  neither 
stated  in  the  complaint  nor  proved ;"  but  the  referee  overruled  the  ob- 
jection; to  which  the  defendant  excepted.  The  referee  reported  in 
favor  of  the  plaintiff  for  $299.55.  Judgment  having  been  entered  on 
the  report,  the  defendant  appealed  to  the  general  term  of  the  Superior 


Sec,  4)  REPUDIATION   OR   SUBSTANTIAL   BREACH  383 

Court,  by  which  the  judgment  was  affirmed ;  and  the  defendant  there- 
upon appealed  to  this  court. 

Strong,  J.  The  first  point  made  by  the  counsel  for  the  appellant 
is,  that  for  the  portion  of  the  work  and  labor  done  under  the  special 
contract,  the  remedy  of  the  plaintiff  was  upon  that  contract ;  and  that 
he  was  not  entitled  to  recover  upon  the  common  counts.  It  is  necessa- 
rily assumed  in  support  of  this  position  that  the  contract  is  the  cause  of 
action  for  that  work  and  labor;  and  if  that  be  so,  the  position  is  cor- 
rect ;  that  cause  of  action  not  being  stated  in  the  complaint,  and  the  ob- 
jection being  taken  at  the  trial,  the  referee  erred  in  allowing  the  part 
of  the  plaintiff's  claim  in  question.  But  the  assumption  is  wholly  un- 
warranted in  the  case.  It  was  not  objected  at  the  trial  that  the  contract 
had  not  been  fully  performed  on  the  part  of  the  plaintiff ;  no  question 
was  raised,  and,  so  far  as  appears,  there  was  no  ground  for  any  ques- 
tion on  that  subject.  Hence  it  must  be  deemed  that  the  plaintiff  had 
done  all  that  was  incumbent  on  him  to  do,  and  that  nothing  remained 
to  be  done  by  tlie  contract  but  payment  of  the  stipulated  price  by  the 
defendant. 

The  case  is,  therefore,  within  the  well-settled  rule  that  where  there 
is  a  special  agreement  and  the  plaintiff  has  performed  on  his  part,  th^ 
law  raises  a  duty  on  the  part  of  the  defendant  to  pay  the  price  agreed 
upon,  and  the  plaintiff  may  count  either  on  this  implied  assumpsit  or 
on  the  express  agreement.  A  new  cause  of  action  upon  such  perform-- 
ance  arises  from  this  legal  duty,  in  like  manner  as  if  the  act  done  had 
been  done  upon  a  general  request  without  an  express  agreement. 
Lawes'  Plead.  5;  Jewell  v.  Schroeppel,  4  Cow.  564;  Feeter  v.  Heath, 
11  Wend.  484;  Mead  v.  Degolyer,  16  Wend.  637,  638;  Clark  v.-  Fair- 
child,  22  Wend,  576.  This  rule  is  not  affected  by  the  Code ;  the  plaintiff 
might,  as  he  has  done,  rest  his  action  on  the  legal  duty ;  and  his  com- 
plaint is  adapted  to  and  contains  every  necessary  element  of  that  cause 
of  action.  It  was  not  necessary  to  state  in  terms  a  promise  to  pay ;  it 
was  sufficient  to  state  facts  showing  the  duty  from  which  the  law  im- 
plies a  promise ;  that  complies  with  the  requirement  that  facts  must  be 
stated  constituting  the  cause  of  action.  Allen  v,  Patterson,  7  N,  Y.  476, 
57  Am.  Dec.  542. 

The  defendant  was  not  precluded  by  the  form  of  the  complaint  from 
setting  up  and  availing  himself  of  any  defense  he  had  under  the  con- 
tract.   Judgment  affirmed.^* 


8  8  "We  take  it  to  be  incontrovertibly  settled  that  Indebitatus  assumpsit  will 
lie  to  recover  the  stipulated  price  due  on  a  special  contract,  not  under  seal, 
where  the  contract  has  been  completely  executed,  and  that  it  is  not  in  such 
case  necessary  to  declare  upon  the  special  agreement."  I'er  Story,  J.,  in  I'.ank 
of  Columbia  v.  I'atterson's  Adm'r  (1813)  7  Craneh  (U.  S.)  209,  .S03.  .3  U  Ed.  .•!:)1, 

Recovery  by  Plaintiff  Who  has  Fully  Performed  Cannot  Exceed  Con- 
tract Price. — Where  the  plaintiff  has  fully  performed  a  contract  now  repu- 
diated by  defendant,  the  amount  of  his  recovery  in  quasi  contract  is  limited 
to  the  compensation  expressed  in  the  contract  (a  doctrine  disapproved  of  by 


384      BENEFITS  UNDER  CONTRACT  PARTIALLY  PERFORMED    (Cll.  3 

SLAYTON  V.  McDonald  et  al. 

(Supreme  Judicial  Court  of  Maine,  1881.    73  Me.  50.) 

On  motion  to  set  aside  the  verdict.  On  appeal  from  the  municipal 
court  of  Calais. 

Virgin,  J.®°  Assumpsit  on  an  account  annexed  comprising  fourteen 
items  of  various  articles  of  iron  casting,  of  different  dates,  running 
from  December  16,  1878,  to  the  following  August.  The  plaintiff  is 
an  iron  founder,  and  the  defendants — William  McDonald  and  his  son 
James — machinists,  having  a  shop  where  tliey  manufacture  and  repair 
mill  and  other  kinds  of  machinery.  The  defendants  admit  their  lia- 
bility for  items  numbered  2,  8,  9  and  12,  and  for  these  charges  the  ac- 
tion is  well  brought  in  the  usual  form  of  indebitatus  assumpsit  for 
goods  sold  and  dehvered ;  but  they  deny  all  connection  with  the  remain- 
ing items. 

The  remaining  items,  except  3,  4,  5  and  6,  comprised  four  sets  of 
"lathe  castings" — that  is  a  sufficient  number  and  quantity  to  make 
four  lathes  when  finished.    In  relation  to  these,  tlie  plaintiff  testified  in 


text-writers — Keener,  Quasi  Contracts,  300-301 ;  Woodward,  Quasi  Contracts, 
§  362). 

In  Dermott  v.  Jones  (1864)  2  Wall.  (U.  S.)  1,  17  L.  Ed.  762,  Swayne,  J.,  said: 
"While  a  special  contract  remains  executory  the  plaintifl;  must  sue  upon  it. 
When  it  has  been  fully  executed  according  to  its  terms,  and  nothing  remains 
to  be  done  but  the  payment  of  the  price,  he  may  sue  on  the  contract,  or  in 
indebitatus  assumpsit,  and  relying  upon  the  common  coimts.  In  either  case 
the  contract  will  determine  the  rights  of  the  parties." 

In  Porter  v.  Dunn  (1S91)  61  Hun,  310,  16  N.  Y.  Supp.  77,  the  plaintiff  and 
his  wife  boarded  and  cared  for  the  defendant's  testator,  a  consumptive  in- 
valid, for  more  than  two  years  under  an  agreement  by  which  the  latter  was 
to  bequeath  to  the  plaintiff's  wife  a  legacy  of  $5,000.  This  the  testator  failed 
to  do,  giving  her  a  legacy  of  ?500  only.  Plaintiff  then  filed  a  claim  against 
the  estate  of  the  testator  for  services  rendered  and  expenses  paid  and  was 
awarded  ?8,404.28.  The  executor  appealed  and  the  general  term  reduced  the 
amount  of  tlie  claim  to  $5,000 ;  Daniels.  J.,  saying :  'There  was  no  dissent 
from  the  proposal  of  the  testator  that  he  would  compensate  the  rendition  of 
the  services  by  this  sum  of  $5,000  to  be  bequeathed  by  his  will.  The  sei-vicea 
were  rendered  and  the  attentions  were  bestowed  upon  him  by  the  claimant's 
wife,  with  the  understanding  that  they  should  be  compensated  in  this  man- 
ner and  the  omission  of  the  testator  to  make  that  provision  in  the  will,  and 
thereby  perform  the  obligations  of  his  contract,  was  not  attended  with  any  in- 
crease of  liability  on  his  part  or  on  the  part  of  his  estate.  For  the  sum  ofl 
$5,000  was  all  that  was  to  be  paid  for  the  seiwices  and  attention  whicli  it  was 
imderstood  would  be  required  by  him.  And  they  were  rendered  upon  the 
understanding  that  this  sum  should  form  a  complete  remuneration  on  the  part 
of  the  testator.  And  under  this  state  of  the  facts,  the  claimant  was  not  at 
liberty  to  recover  for  the  value  of  the  services  themselves,  but  should  have 
been  restricted  to  this  sum  of  $5,000,  which  the  testator  agreed  to  provide 
by  his  will,  but  in  the  end  failed  to  do." 

See,  also,  Ryan  v.  Remmey  (1895)  57  N.  J.  Law,  474,  31  Atl.  766 ;  Barnett  v. 
Sweringen  (1S9S)  77  Mo.  App.  64,  71. 

•»  The  statement  of  facts  is  omitted. 


■  Sec.  4)  REPUDIATION   OR   SUBSTANTIAL   BREACH  385 

substance — that  he  delivered  them  in  accordance  with,  a  verbal  con- 
tract with  one  W.  Randolph  McDonald,  (son  of  William  and  brother  oT 
James,  the  defendants,  one  of  their  workmen  and  book-keeper,)  where- 
by it  was  agreed  that  the  defendants  should  have  three  of  the  sets  for 
finishing  and  fitting  the  other  for  the  plaintiff ;  that  in  making  this  con- 
tract Randolph  professedly  acted  as  agent  of  the  defendants;  that 
prior  thereto  Randolph  had  frequently  come  to  the  plaintift''s  foundry 
and  ordered  castings  for  the  defendants  which  they  had  invariably 
paid  for ;  that  the  defendants,  in  June,  18'79,  on  complaint  being  made 
to  them  of  the  delay  in  fitting  up  the  plaintiff's  lathe,  declared  it  should 
be  done  right  away;  but  that  they  still  neglecting  to  finish  it,  he  on 
August  26,  1879,  brought  this  action. 

Assuming  this  testimony  to  be  true,  and  that  Randolph  had  authori- 
ty to  make  the  contract  in  behalf  of  the  defendants,  this  form  of  action 
cannot  be  maintained  for  the  recovery  of  the  value  of  the  lathe  cast- 
ings. For  the  general  principle  of  law  is  well  settled,  that  where  goods 
are  sold  to  be  paid  for  wholly  or  in  part  by  other  goods  or  by  the  de- 
fendant's labor,  or  otherwise  than  in  money,  the  action  must  be  by  spe- 
cial count  on  the  agreement,  and  for  a  breach  of  it,  and  not  for  goods 
sold  and  delivered — otherwise  the  proper  rule  of  damages  cannot  be 
applied.  1  Chit.  Plead.  (16th  Ed.)  357,  and  notes;  Mitchell  v.  Gile,  12 
N.  H.  390,  and  the  numerous  cases  there  cited;  Holden  S.  Mill  v. 
Westervelt,  67  Me.  446,  450,  and  cases.  The  verdict  is  therefore 
against  law.^ 


1  Accord:  Harrison  v.  Luke  (1845)  14  Mees.  &  W.  139;  Snedlcor  v.  Leach- 
man  (1846)  10  Ala.  330;  Anderson  v.  Rice  (1852)  20  Ala.  239;  Shropshire  v. 
Adams  (1905)  40  Tex.  Civ.  App.  339,  89  S.  W.  448 ;  Pierson  v.  Spaulding  (18SG) 
61  Mich.  90,  27  N.  W.  865 ;  INIitchell  v.  Gile  (1841)  12  N.  H.  390.  It  should  be 
noted  that  the  Alabama  and  New  Hampshire  cases  above  cited  seem  to  adopt 
the  English  rule  that  plaintiff  cannot  rescind  upon  defendant's  substantial 
breach,  but  only  upon  his  repudiation  of  the  contract. 

Contra:  Drew  v.  Claggett  (1859)  39  N.  H.  431;  Clark  v.  Fairchild  (1840) 
22  Wend.  (N.  Y.)  576  (a  careful  opinion  by  Cowen,  J.).  See.  also,  Keys  v. 
Harwood  (1846)  2  C.  B.  905,  and  Brown  v.  St,  Paul,  Minneapolis  &  Manitoba 
Ry.  Co.  (1886)  36  Minn.  236,  31  N.  AV.  941.  In  Uie  case  last  cited,  after  up- 
holding judgment  for  plaintiff  on  another  ground,  Dickinson,  J.,  said  (36  Minn. 
238,  31  N.  W.  942):  "I  would  place  the  decision  upon  the  proposition,  which 
Is  not  to  be  taken  as  adopted  by  the  court,  that  the  defendant  having  wholly 
refused  to  perform  the  alleged  contract  on  its  part,  (not  being  a  stipulation 
for  the  payment  of  money,)  and  the  plaintiffs  having  performed  on  their  part, 
but  having  received  nothing  in  return,  the  defendant  cannot  hold  the  plain- 
tiffs bound  by  the  contract,  or  object  if  they  also  disregard  its  stipulations; 
that  they  have,  under  such  circumstances,  an  election  either  to  stand  either 
upon  the  special  contract  and  recover  for  its  breach,  or  to  treat  it  as  i-escind- 
ed,  and  recover  the  value  of  their  services  as  if  the  special  contract  had  not 
been  made." 

If  the  transaction  is  for  a  money  consideration  payable  in  goods,  plaintiff's 
right  to  rescind  in  a  case  of  repudiation  or  substantial  breach  and  recover 
the  money  value  of  his  goods  or  services  is  generally  recognized.  AVainwright 
V.  Straw  (1843)  15  Vt.  215,  40  Am.  Dec.  675;  Newman  v.  McGregor  (1832)  5 
Ohio,  349,  24  Am.  Dec.  293.  Contra:  Pierson  v.  Spaulding  (1886)  61  Mich. 
90,  27  N.  W.  865. 

Thues.Quasi  Cont. — 25 " 


386  BENEFITS   UNDER   CONTRACT   PARTIALLY   PERFORMED  (Ch.  3. 

But  if  the  declaration  had  contained  a  special  count  for  the  lathe 
castings,  we  do  not  think  the  jury  were  warranted  in  finding  that  Ran- 
dolph was  authorized  to  make  the  contract  in  behalf  of  the  defendants. 

Our  opinion  therefore  is  that  the  verdict  is  against  law  and  the  evi- 
dence.   Motion  sustained.* 


II.    By    PLAINTlFlf 

OXENDALE  v.  WETHERELL. 

(Court  of  King's  Bench,  1S29.     9  Bam.  &  C.  3S6.) 

Assumpsit  for  wheat  and  other  corn,  goods,  wares,  and  merchandises 
sold  and  delivered.  Plea,  general  issue.  At  the  trial  before  Bayley,  J., 
at  the  Spring  assizes  for  the  county  of  York  1829,  the  following  ap- 
peared to  be  tlie  facts  of  the  case.  The  action  was  brought  to  recover 
the  price  of  130  bushels  of  wheat,  sold  and  delivered  by  the  plaintiff  to 
the  defendant,  at  8s.  per  bushel.  Evidence  was  given  on  the  part  .of 
the  plaintiff,  that  on  the  17th  of  September  1828,  he  had  sold  to  the  de- 
fendant all  the  old  wheat  which  he  had  to  spare  at  8s.  per  bushel ;  and 
that  he  had  delivered  to  the  defendant  130  bushels.  The  defendant 
gave  evidence  to  show  that  he  had  made  an  absolute  contract  for  250 
bushels,  to  be  delivered  within  six  weeks,  that  the  price  of  corn  at  the 
time  of  the  contract  was  8s.  per  bushel,  and  afterwards  rose  to  10s. ; 
and  it  was  insisted  on  his  part,  that  the  contract  being  entire,  the  plain- 
tiff not  having  delivered  more  than  130,  had  not  performed  his  part 
of  the  contract,  and  therefore  could  not  recover  for  that  quantity.  On 
the  other  hand,  it  was  contended  that  the  vendor  having  delivered,  and 
the  vendee  having  retained  part,  the  contract  was  severed  pro  tanto, 
and  that  the  plaintiff  was  entitled  to  recover  the  value.  The  learned 
Judge  was  of  opinion,  that  even  if  the  contract  was  entire,  as  the  de- 
fendant had  not  returned  the  130  bushels,  and  the  time  for  completing 
the  contract  had  expired  before  the  action  was  brought,  the  plaintiff 
was  entitled  to  recover  the  value  of  the  130  bushels  which  had  been  de- 
livered to  and  accepted  by  the  defendant;  but  he  desired  the  jury  to 
say,  whether  the  contract  was  entire  for  250  bushels,  and  they  found 
that  it  was.  Whereupon  a  verdict  was  entered  for  the  plaintiff,  and 
the  defendant  had  liberty  to  move  to  enter  a  nonsuit  if  the  Court  should 

2  Accrual  of  Cause  of  Action. — "When  did  the  statute  of  limitations  begin 
to  run?  The  answer  to  this  question  depends  on  the  date  when  the  cause  of 
action  accrued.  As  long  as  the  contract  of  purchase  was  in  force,  plaintiff 
could  not  maintain  an  action  of  this  nature.  Such  an  action  will  not  lie  until 
the  contract  has  been  tenuinated."  Thiele  v.  Carey  (1909)  85  Neb.  454,  123 
N.  W.  442,  133  Am.  St.  Rep.  679. 

Election. — An  election  to  sue  for  breach  of  the  contract  bars  the  right  to 
sue  on  the  common  counts.  Goodman  v.  Pocock  (18-50)  15  Q.  B.  576,  117  Eng. 
Rep.  577.  So  also  an  election  tO'  sue  on  the  common  counts  bars  the  right  to 
sue  for  breach  of  the  contract.  Keedy  v.  Ix)ng  (1SS9)  71  Md.  385,  18  Atl.  704,  5 
L.  R.  A.  759.  As  to  what  constitutes  an  election,  see  Woodward,  Quasi  Ct>ii- 
tracts,  §  266. 


Sec.  4)  REPUDIATION   OR   SUBSTANTIAL   BREACH  387 

be  of  opinion  that  the  plaintiff  was  not  entitled  to  recover,  on  the 
ground  that  he  had  not  performed  the  contract. 

Brougham  now  moved  accordingly,  and  relied  upon  Walker  v.  Dix- 
on, 2  Stark.  281,  where  the  plaintiff  having  contracted  for  the  sale  of 
100  sacks  of  flour,  at  94s.  6d.  per  sack,  delivered  part,  but  refused  to 
deliver  the  residue,  the  defendant  being  willing  to  receive  and  pay  for 
the  whole ;  Lord  Ellenborough  held  that  the  plaintiff  could  not  recover 
for  the  part  delivered,  and  nonsuited  him. 

Lord  Te;nte;rdEn,  C.  J.  In  Manning's  Digest,  p.  389,  the  Court 
are  stated  to  have  set  aside  the  nonsuit,  ex  relatione  Wilde,  of  counsel 
for  the  defendant.  If  the  rule  contended  for  were  to  prevail,  it  would 
follow,  that  if  there  had  been  a  contract  for  250  bushels  of  wheat,  and 
249  had  been  delivered  to  and  retained  by  the  defendant,  the  vendor 
could  never  recover  for  tlie  249,  because  he  had  not  delivered  the 
whole. 

BaylDy,  J.  The  defendant  having  retained  the  130  bushels  after 
the  time  for  completing  the  contract  had  expired,  was  bound  by  law 
to  pay  for  the  same. 

Parke;,  J,  Where  there  is  an  entire  contract  to  deliver  a  large  quan- 
tity of  goods,  consisting  of  distinct  parcels,  within  a  specified  time,  and 
the  seller  delivers  part,  he  cannot,  before  the  expiration  of  that  time, 
bring  an  action  to  recover  the  price  of  that  part  delivered,  because  the 
purchaser  may,  if  the  vendor  fail  to  complete  his  contract,  return  the 
part  delivered.  But  if  he  retain  the  part  delivered  after  the  seller  has 
failed  in  performing  his  contract,  the  latter  may  recover  the  value  of 
the  goods  which  he  has  so  delivered. 

Rule  refused.' 

8  "The  modern  American  rule  seems  to  be  that  a  party  who  has  failed  to 
perform  in  full  his  contract  for  the  sale  and  delivery  of  personal  property 
may  recover  compensation  for  the  part  actually  delivered  end  received  there- 
under, less  the  damages  occasioned  hy  his  failure  to  make  the  complete  deliv- 
ery."    Saunders  v.  Short  (1S9S)  86  Fed.  225,  30  G.  C.  A.  462. 

Accord:  Shipton  v.  Carson  (1S26)  5  B.  &  C.  378,  108  Eng.  Rep.  141;  United 
States  V.  MoUov  (1906)  144  Fed.  321,  7-5  C.  C.  A.  283,  11  L.  R.  A.  (N.  S.)  487 ; 
Gibbony  V.  R.  W.  Wayne  &  Co.  (1904)  141  Ala.  300,  37  South.  436;  Polhemus 
V.  Heiman  (1873)  45  Cal.  573 ;  Hills  v.  Edmund  Peycke  Co.  (1910)  14  Cal.  App. 
32,  110  Pac.  10S8;  Stephens  Lumber  Co.  v.  Gates  (1911)  02  Fla.  382,  56  South. 
298;  Richards  v.  Shaw  (1873)  67  111.  222;  Epperly  v.  Bailey  (1851)  3  Ind. 
72;  Bowker  v.  Hoyt  (1830)  IS  Pick.  (Mass.)  555;  Hedden  v.  Roberts  (1883) 
134  Mass.  38,  45  Am.  Rep.  276;  Clark  v.  Moore  (1853)  3  Mich.  55;  Mead  v.  Rat 
Portage  Lumber  Co.  (1904)  93  Minn.  343,  101  N.  W.  299;  Briggs  v.  JMorgau 
(1904)  104  Mo.  App.  62,  78  S.  W.  295 ;  Flanders  v.  Putney  (1878)  .58  N.  II.  358 ; 
Shaw  V.  Badger  (1824)  12  Serg.  &  R.  (Pa.)  275 ;  Porter  v.  Woods  (1842)  3 
Humph.  (Tenn.)  50,  39  Am.  Dec.  153. 

In  many  of  the  cases  above  cited  it  seems  that  the  defendant,  when  he 
accepted  a  delivery  of  the  iwrtion  of  the  goods  covered  by  the  contract,  for^ 
the  value  of  which  the  action  was  brought,   was  aware  that  plaintiff  was 
unable  or  unwilling  to  complete  his  performance  of  the  contract. 

The  authorities  generally  seem  to  pay  little  attention  to  the  reasons  which 
Induced  plaintiff's  breach,  and  to  the  question  whether  or  not  lie  attempted 
to  fulfill  his  contract  in  good  faith.  P.iit  this  point  is  considered  in  Viles  v. 
Barre  &  M.  Traction  &  Power  Co.  (1906)  79  Vt  311,  Go  Atl.  104,  where  tJie 
court  said:    "In  the  circumstances  of  the  case,  if  the  plaintiff  could  satisfy 


388  BENEFITS   UNDER   CONTRACT   PARTIALLY   PERFORMED  (Ch.  3 

CHAMPLIN  V.  ROWLEY. 

(Supreme  Court  of  New  York,  1835.    13  Wend.  258.) 

This  was  an  action  of  assumpsit,  tried  at  the  Dutchess  circuit  in 
November,  1830,  before  the  Hon.  Charles  H.  Ruggles,  one  of  the  cir- 
cuit judges. 

The  declaration  contained  the  common  counts  only  for  goods  and 
chattels,  and  hay  sold  and  delivered  by  the  plaintiff  to  the  defendant. 
On  the  trial  of  the  cause,  the  defendant  admitted  that  in  the  autumn 
of  the  year  1831,  the  plaintiff  delivered  to  him,  at  a  dock  at  Rhine- 
beck,  52  tons  and  900  lbs.  of  pressed  hay,  and  that  the  value  thereof 
was  three  shillings  and  sixpence  per  100  weight,  and  that  the  last  load 
was  delivered  about  the  seventh  day  of  December,  when  the  river  closed 
or  the  navigation  was  interrupted  by  ice.  The  defendant  then  proved, 
that  on  the  12th  September,  1831,  a  contract  was  entered  into  between 
him  and  the  plaintiff,  whereby  the  plaintiff  agreed  to  deliver  to  him, 
at  the  state  dock  in  Rhinebeck,  100  tons  of  hay,  and  all  the  hay  that 
the  plaintiff  had  to  spare  beyond  that  quantity,  to  be  delivered  pressed, 
between  that  time  and  the  last  run  of  the  sloops ;  for  which  the  de- 
fendant was  to  pay  the  plaintiff  at  the  rate  of  three  shillings  and  six- 
pence per  100  wt. — $100  to  be  paid  in  advance,  and  the  residue  when 
the  whole  quantity  should  be  delivered.  The  defendant  also  proved, 
that  about  the  middle  of  September  he  paid  the  $100  to  the  plaintiff,  and 
that  the  plaintiff  had  admitted  that  the  quantity  of  hay  he  had  to 
spare  was  between  150  and  200  tons.  He  further  proved  that  no  hay 
was  delivered  by  the  plaintiff  previous  to  the  25th  October,  and  that 
the  last  load  of  hay  delivered  by  the  plaintiff  was  delivered  a  day  or 
two  previous  to  the  closing  of  the  navigation ;  at  which  time  only  the 
quantity  of  52  tons  and  900  wt.  had  been  delivered.  In  addition  to 
which  evidence,  the  defendant  offered  to  prove,  in  pursuance  of  a 
notice  attached  to  his  plea,  that  after  the  making  of  the  contract,  the 
price  of  hay  rose  in  market  to  eight  shillings,  and  from  that  sum  to  ten 
shillings  per  100  wt. ;  and  that  had  the  plaintiff  performed  his  contract, 
the  net  profits  which  the  defendant  would  have  made  upon  the  hay 

the  juiT  that  he  had  endeavored  in  entire  good  faitti  to  fulfill  the  contract 
to  the  letter,  then  he  was  entitled  to  a  quantum  meruit  recovery  unless  the 
amoimt  of  damage  resultiug  to  the  defendant  from  the  breach  of  contract  was 
such  as  to  prevent  such  recovery.  The  common-law  rule,  which  sometimes 
worked  hardships  undeserved  and  unsalutary,  has  been  somewhat  relaxed ; 
but  good  faith  in  endeavoring  to  perform  fully  and  exactly  is  essential  to  a 
quantum  meruit  in  a  case  like  this.  In  such  a  case,  miless  the  party  in  de- 
fault has  in  good  faith  endeavored  to  accomplish  full  ijerformance,  he  deserves 
nothing.  To  hold  otherwise  would  be  to  encourage  a  disregard  of  contract 
obligations."  Also  in  Wilson  v.  Wagar  (1873)  26  Midi.  452,  465,  Christiancy, 
J.,  held  that  this  doctrine  "sliould  be  couiined  to  cases  in  which  the  applica- 
tion of  the  strict  principles  of  the  old  common  law  would  savor  of  hardship 
and  injustice,  and  should  therefore,  never  be  allowed  to  a  plaintiff  who  has 
wantonly  or  in  bad  faitk,  or  as  a  mere  matter  of  speculation,  refused  to  per- 
form Ms  contract," 


Sec.  4)  REPUDIATION   OR   SUBSTANTIAL   BREACH  389 

undelivered  would  have  exceeded  the  sum  now  claimed  by  the  plaintiff 
for  the  hay  which  had  been  delivered.  The  defendant  also  offered  to 
prove,  that  in  consequence  of  the  contract  made  with  the  plaintiff,  he 
had  hired  a  store-house  in  the  city  of  New  York  for  the  reception  of 
the  hay,  at  a  rent  of  $90,  which  he  had  been  obliged  to  pay ;  and  that 
in  consequence  of  the  non-performance  of  the  plaintiff  in  the  delivery 
of  the  hay,  the  store-house  had  been  unoccupied  and  of  no  use  to  the 
defendant — which  evidence  thus  offered  to  be  given  was  objected  to 
by  the  plaintiff,  and  rejected  by  the  judge.  The  defendant  then  in- 
sisted that  the  plaintiff  was  not  entitled  to  recover,  1.  Because  the  spe- 
cial contract  being  in  force  and  unrescinded,  the  plaintiff  could  not  re- 
cover without  showing  a  full  performance  on  his  part;  and  2.  That 
at  all  events,  he  could  not  recover  under  the  common  counts.  The 
judge  decided  that  the  case  came  within  the  rule  of  law,  that  where  the 
plaintiff's  contract  or  covenant  goes  only  to  a  part  of  the  consideration 
of  the  defendant's  contract,  and  the  breach  may  be  compensated  in 
damages,  and  the  defendant  has  actually  received  a  partial  benefit,  the 
plaintiff  may  support  an  action  without  showing  performance ;  that  it 
was  not  necessary  that  the  plaintiff  should  have  declared  on  the  spe- 
cial agreement,  and  that  he  was  entitled  to  recover  on  the  common 
counts.  The  judge  accordingly  directed  the  jury  that  the  plaintiff  was 
entitled  to  their  verdict  for  the  value  of  the  hay  delivered,  at  three 
shillings  and  sixpence  per  100  wt.,  after  deducting  the  $100  paid, 
together  with  tlie  interest  of  the  balance  from  the  9th  December,  1831, 
when  the  navigation  closed.  The  jury,  without  leaving  the  box,  found 
a  verdict  for  the  plaintiff  for  the  sum  of  $386.64.  The  defendant 
moves  for  a  new  trial. 

Nelson,  J.  Unless  we  are  at  liberty  to  make  a  contract  for  these 
parties,  it  is  perfectly  clear,  that  beyond  the  $100  which  was  to  be 
paid  in  advance,  the  defendant  is  not  bound  to  make  any  payment 
towards  the  hay,  until  the  whole  quantity  agreed  to  be  delivered,  viz. 
100  tons,  and  all  besides  that  the  plaintiff  had  to  spare,  has  been  actu- 
ally received  by  him.  The  residue  of  the  price  of  the  hay,  after  the 
payment  of  the  $100,  was  to  be  paid  when  the  whole  quantity  should 
be  delivered.  Such  are  the  express  terms  of  the  contract,  and  we  are 
not  left  to  doubtful  construction  to  ascertain  the  intention  of  the 
parties.  Whether  any  thing  short  of  the  act  of  the  defendant  him- 
self could  legally  dispense  with  the  performance  of  the  precedent  con- 
dition, is  a  question  which  we  need  not  examine ;  for  it  is  clear  that 
there  is  nothing  in  the  contract,  or  in  the  case  as  presented  to  us, 
which  can  have  that  effect.  Moakley  v.  Riggs,  19  Johns.  71,  10  Am. 
Dec.  196;  Taylor  v.  Bullen,  6  Cow.  627;  6  T.  R.  211.  The  plain- 
tiff assumed  to  deliver  the  whole  quantity  of  hay  previous  to  the  last 
run  of  the  sloops,  and  he  must  abide  the  consequences  of  his  default. 
We  know  that  it  was  possible  to  have  performed  tlie  contract  on  his 
part.  The  case  falls  within  principles  familiar  in  this  court,  which 
inculcate  the  observance  of  good  faith  in  the  fulfilment  of  contracts. 


390  BENEFITS    UNDER    CONTRACT    PARTIALLY    PERFORMED  (CH.  3 

McMillan  v.  Vanderlip,  12  Johns.  165,  7  Am.  Dec.  299;  Thorpe  v. 
White,  13  Johns.  53 ;  Jennings  v.  Camp,  13  Johns.  94,  7  Am.  Dec. 
Z(i7 ;    Ketchum  v.  Evertson,  13  Johns.  359,  7  Am.  Dec.  384. 

It  is  unnecessary  to  comment  upon  the  English  cases,  as  the  subject 
now  under  consideration  has  frequently  been  presented  to  this  court; 
and  the  principles  applicable  to  it  have  been  clearly  stated  and  settled. 
Some  of  the  cases  relied  upon  by  the  counsel  for  the  plaintiff  have  been 
referred  to,  and  their  authority  repudiated  by  this  court.  The  case 
decided  by  Lord  Hale  at  the  Norfolk  assizes,  1662,  is  pronounced 
by  Judge  Spencer,  in  McMillan  v.  Vanderlip,  12  Johns.  165,  7  Am^ 
Dec.  299,  "a  very  unreasonable  decision."  In  that  case.  Judge  Spencer 
also  noticed  the  qualification  to  the  case  of  Waddington  v.  Oliver,  5 
Bos.  &  Pul.  61,  that  the  plaintiff  had  no  right  to  bring  an  action  "until 
the  time  for  the  delivery  of  the  whole  had  arrived,"  and  expressed 
his  inability  to  perceive  the  grounds  on  which  it  rests ;  and  disregard- 
ed it  in  that  case  and  in  the  subsequent  cases,  13  Johns.  94,  7  Am.  Dec. 
367,  and  13  Johns.  365,  7  Am.  Dec.  384.  The  modern  case  of  Oxen- 
dale  V.  Wetherel,  17  Com.  Law  R.  401,  is  as  exceptionable  and  as 
repugnant  as  the  case  decided  by  Lord  Hale,  to  the  principle  of  the 
cases  determined  in  this  court,  and  therefore  cannot  be  regarded. 

If  the  action  could  have  been  sustained  upon  the  common  counts,  I 
have  no  doubt  the  defence  offered  in  mitigation  of  damages  would 
have  been  admissible  and  proper,  within  the  principles  of  the  case  of 
Reab  v.  McAlister,  decided  in  the  court  for  the  correction  of  errors^ 
8  Wend.  109.     New  trial  granted.* 

■1  Case  was  affirmed  on  appeal  by  the  Court  for  the  Correction  of  Errors. 
Champlin  v.  Rowley  (1837)  18  Wend.  187.  In  that  court  Chancellor  Walworth 
said,  in  part:  "In  Oxendale  v.  Wetherell.  9  Barn.  &  Cress.  386,  it  was.held  that 
the  party  who  had  failed  to  perform  his  contract  could  recover  against  the 
o<^her  who  had  not  been  in  fault,  for  the  wheat  delivered  in  part  performance 
of  his  agreement,  unless  the  defendant  had  returned  the  wheat  delivered. 
This  decision  carried  to  the  extent  it  was  in  that  case,  cannot  be  considered 
as  good  law  anywhere;  for  it  is  not  founded  upon  any  equitable  principle, 
and  is  contrary  not  only  to  justice,  but  also  to  common  sense.  The  only  way 
I  can  account  for  it,  is  upon  the  supposition  that  the  facts  of  the  case  are 
not  properly  stated  in  the  report;  or  that  the  injustice  of  requiring  the  party 
who  was  not  in  fault  to  be  at  the  expense  of  returning  to  the  other  party 
bulky  articles  of  this  description,  or  even  of  seeking  him  for  the  purpose  of 
making  an  offer  to  return  them,  to  protect  himself  from  an  action,  was  not 
presented  to  the  consideration  of  the  court.  Again  :  in  that  case,  as  In  this, 
the  contract  was  not  to  deliver  the  whole  quantity  at  one  time,  but  to  deliver 
the  whole  within  a  certain  specified  period.  Neither  was  there  any  agreement, 
either  express  or  implied,  that  the  defendant  should  not  be  permitted  to  sell 
or  use  the  several  parcels,  delivered  from  time  to  time,  until  the  latest  period 
for  completing  the  contract  had  actually  expired.  Here  the  contract  was  to 
deliver  a  large  quantity  of  pressed  hay  upon  the  dock  at  Rhinebeck,  between 
the  12th  of  September  and  the  closing  of  the  navigation  on  the  river;  from 
which  it  is  fairly  to  be  inferred  that  it  was  understood  by  both  parties  that 
it  was  to  be  transported  from  thence  to  the  market  where  such  an  article  as 
pressed  hay  was  used,  by  water,  and  while  the  river  remained  open.  The 
plaintiff,  therefore,  was  not  bound  to  take  all  the  hay  to  the  dock  at  once; 
but  the  defendant,  by  liis  contract,  was  bound  to  receive  it  in  reasonable  par- 
cels, as  it  was  brought  to  the  place  appointed  for  the  delivery  within  the  time 
specified.     Lewis  v.  Weldon,  3  Rand.   (Va.)   71.     Neither  is  it  the  sensible 


Sec.  4)  RErUDIATION  OR  SUBSTANTIAL  BREACH  391 

construction  of  this  agreement,  that  the  defendant  was  to  keep  the  fifty-two 
tons  of  hay  on  hand  at  Rhinebeck  dock,  until  after  the  navigation  closed,  for 
the  purpose  of  seeing  whether  the  other  party  intended  to  perform,  his  agree- 
ment as  to  the  delivery  of  the  residue.  The  idea  of  founding  an  action  upon 
the  neglect  of  the  defendant  to  return  the  hay  delivered  in  such  a  case,  there- 
fore, is  not  founded  in  good  sense.  And  I  confess  I  can  see  no  ground  for  the 
distinction  which  has  been  estiiblished  by  the  English  cases  since  the  devolu- 
tion, between  the  part  performance  of  a  contract  for  labor  and  a  partial  per- 
formance of  a  contract  for  the  delivery  of  specific  articles  under  such  an 
a^eeuient  as  this.  If  the  fifty-two  tons  of  hay  delivered  under  this  contract 
were  in  New  York  at  the  time  the  navigation  closed,  as  it  may  fairly  be  pre- 
sumed they  were,  if  the  defendant  had  paid  a  reasonable  attention  to  his  own 
interest,  or  if  the  wheat  in  the  case  of  Oxendale  v.  Wetherell,  liad  been  sold 
or  converted  into  flour  before  the  failure  of  the  plaintiff  to  perform  the  residue 
of  his  contract,  it  would  be  about  as  unreasonable  to  require  the  defendant 
to  return  the  hay  to  the  plaintiff  as  it  would  be  to  return  the  fruits  of  the 
labor  of  a  man  who  had  neglected  to  perform  his  contract  for  labor  in  full." 

In  accord  with  the  principal  case  are :  Mead  v.  Degolyer  (1837)  16  Wend. 
632.  (The  plaintiff  "furnished  a  part  of  the  timber,  and  then,  without  any 
excuse  or  apology  whatever,  stopped  short,  and  now  claims  to  recover  for  the 
timber  actually  delivered.  The  mere  statement  of  the  case  furnishes  a  com- 
plete answer  to  the  action.")  Catlin  v.  Tobias  (1863)  26  N.  Y.  217,  84  Am. 
Dec.  183.  (Plaintiff  unable  to  complete  contract  owing  to  his  having  failed 
in  business.)  Witherow  v.  Witherow  (1847)  16  Ohio  238.  (But  see  strong 
dissenting  opinion.)  Brown  v.  Fitch  (1867)  33  N.  J.  Law,  418.  Russell  v. 
Stewart  (1870)  64  N.  C.  487.  (Willful  refusal  by  a  plaintiff  to  complete  his 
contract.) 

In  jurisdictions  where  this  doctrine  prevails  the  courts  are  alert  to  discover 
evidence  of  a  waiver  of  the  harsh  requirement  that  all  the  goods  must  be  de- 
livered before  any  liability  to  pay  arises.  In  Avery  v.  Willson  (1880)  81  N.  Y. 
341,  37  Am.  Rep.  503,  plaintiff  contracted  to  supply  defendants  with  a  certain 
quantity  of  cut  glass,  delivery  to  be  made  all  at  one  time.  Plaintiff  delivered 
a  portion  of  the  glass,  and  defendants  at  the  time  made  no  objection  to  such, 
partial  delivery.  Held,  that  plaintiff  could  recover  the  value  of  the  glass  de- 
livered. "While  then  the  defendants  were  not  bound  to  accept  a  delivery  of 
a  portion  of  the  boxes  of  glass,  and  had  a  right  to  reject  or  retain  the  same 
as  they  saw  fit,  yet  if  they  elected  to  receive  the  part  delivered,  appropriated 
the  same  to  their  own  use,  and  by  their  acts  evinced  that  they  waived  this 
condition,  tliey  became  liable  to  pay  for  what  was  actually  delivered.  This 
rule  is  established  in  numerous  reported  cases,  and  the  question  of  waiver  is 
frequently  one  of  fact  to  be  determined  by  the  circumstances  and  the  evi- 
dence." 

See,  also,  Brady  v.  Cassidy  (1895)  145  N.  Y.  172.  39  N.  E.  814;  Downs  v. 
Marsh  (1861)  29  Conn.  409 ;  Churchill  v.  Holton  (1888)  38  Minn.  519,  38  N.  W. 
611. 

The  Uniform  Sales  Act,  §  44,  contains  the  following  provision :  "Where  the 
seller  delivers  to  the  buyer  a  quantity  of  goods  less  than  he  contracted  to  sell, 
the  buyer  may  reject  them,  but  if  the  buyer  accepts  or  retains  the  goods  so 
delivered,  knowing  that  the  seller  is  not  going  to  perform  the  contract  in  full, 
he  must  pay  for  them  at  the  contract  rate.  If,  however,  the  buyer  has  used 
or  disposed  of  the  goods  delivered  before  he  knows  that  the  seller  is  not  going 
to  perform  his  contract  in  full,  the  buyer  shall  not  be  liable  for  more  than 
the  fair  value  to  him  of  the  goods  so  received." 

See  Williston  on  Sales,  §  458. 


392      BENEFITS  UNDER  CONTRACT  PARTIALLY  PERFORMED    (Ch.  3 

ALLEN  V.  BURNS. 

(Supreme  Judicial  Court  of  Massachusetts,  1909.     201  Mass.  74,  S7  N.  E.  194.) 

Exceptions  from  Superior  Court,  Suffolk  County;  Robert  F.  Ray- 
mond, Judge. 

Action  by  Walter  B.  Allen  and  others  against  Caroline  S.  Burns. 
Judgment  for  plaintiffs,  and  defendant  excepts. 

Knowlton,  C.  J.  The  only  question  in  this  case  is  one  of  pleading. 
The  first  count  is  upon  an  account  annexed,  the  first  item  of  which 
is,  "House  remodeled  and  redecorated  as  agreed,  $4,728.25."  Then 
follow  39  items  for  additional  labor  and  materials  in  connection  with 
the  work  referred  to  in  tlie  contract.  The  second  count  is  upon  a  spe- 
cial contract  in  writing,  a  copy  of  which  is  annexed,  and  it  is  averred 
that  the  plaintiff's  in  all  respects  kept  and  performed  all  the  covenants, 
and  agreements,  express  and  implied,  in  said  contract  by  them  to  be  kept 
and  performed,  and  that  there  remains  unpaid  the  plaintiffs  under  said 
contract  the  sum  of  $1,728.25,  etc.  The  plaintiffs  offered  the  auditor's 
report  and  rested.  The  defendant  offered  evidence  tending  to  show  that 
the  plaintiffs  had  not  performed  the  contract.  The  plaintiffs  in  rebuttal 
offered  evidence  tending  to  show  an  acceptance  of  the  work  and  ma- 
terials as  a  substantial  performance  of  the  contract. 

The  principal  finding  of  the  auditor  bearing  upon  the  matter  in 
dispute  was  as  follows:  "I  find  on  the  evidence  that  she  voluntarily 
accepted  and  received  the  benefits  of  the  plaintiff's  part  performance, 
with  full  knowledge  that  the  contract  had  not  been  strictly  fulfilled." 
The  defendant  requested  the  court  to  rule  "that  the  report  of  the  au- 
ditor was  not  evidence  of  acceptance  of  the  performance  of  the 
contract  by  the  defendant."  This  request  was  refused  and  the  de- 
fendant excepted.  By  the  terms  of  the  contract  the  balance  of  the 
contract  price  was  payable  "upon  completion  of  the  work."  The 
defendant  requested  the  court  to  rule  "that  a  strict  performance  of 
the  contract  was  a  condition  precedent  to  the  payment  to  the  plain- 
tiffs of  the  final  payment  set  forth  in  the  contract."  Also  "that  if  the 
contract  was  not  fully  performed  by  the  plaintiffs,  they  could  not  re- 
cover on  the  second  count  of  the  plaintiffs*  declaration."  The  court 
declined  so  to  rule,  but  ruled  that  if  there  had  been  a  substantial  per- 
formance by  the  plaintiffs  of  the  contract  in  suit,  they  were  entitled 
to  recover,  under  either  count  of  the  declaration,  the  contract  price,  less 
payments  made  by  the  defendant  on  account,  and  certain  deductions 
for  deviations  from  the  contract,  and  found  for  the  plaintiffs  in  the 
sum  of  $1,580.25,  with  interest  from  June  1,  1906,  as  the  balance  due 
on  the  special  contract,  and  found  for  the  plaintiffs  in  a  certain  sum, 
on  items  2  to  40  in  the  account  annexed  to  tlie  first  count  of  the  dec- 
laration. 

The  ruling  shows  that  the  judge  made  deductions  from  the  contract 
price  for  deviations  from  the  contract,  and  we  infer  from  the  record, 


Sec.  4)         REPUDIATION  OR  SUBSTANTIAL  BREACH  393 

although  perhaps  this  is  not  certain,  that  the  amount  of  these  deduc- 
tions was  $148.50.  He  found  that  there  had  been  a  substantial  per- 
formance of  the  contract,  and  that  the  defendant  had  accepted  the 
work  and  materials  furnished  by  the  plaintiffs  as  a  substantial  per- 
formance of  their  contract,  with  a  full  knowledge  that  the  contract 
had  not  been  strictly  performed. 

These  findings  and  rulings  and  refusals  to  rule,  in  a  case  where  there 
was  such  a  failure  to  perform  a  building  contract  as  to  call  for  a  sub- 
stantial reduction  from  the  contract  price  under  the  rule  stated  in  Hay- 
ward  V.  Leonard,  7  Pick.  181,  19  Am.  Dec.  268,  which  permits  a  recov- 
ery when  there  has  been  an  attempt  in  good  faith  to  perform  such  a 
contract  and  a  substantial  performance  of  it,  present  the  question 
whether  there  can  be  a  recovery  upon  such  facts,  under  a  count  aver^ 
ring  performance  of  a  special  contract,  or  whether  there  must  be  a 
count  in  indebitatus  assumpsit,  or  some  other  statement  of  the  grounds 
of  recovery. 

We  think  it  has  generally  been  assumed  that,  in  such  a  case,  there 
can  be  no  recovery  under  a  count  averring  performance  of  the  special 
contract  by  the  plaintiff  and  a  breach  of  it  by  the  defendant.  Hayward 
V.  Leonard,  ubi  supra;  Snow  v.  Ware,  13  Mete.  42;  Gillis  v.  Cobe, 
177  Mass.  584,  59  N.  E.  455 ;  Norwood  v.  Lathrop,  178"  Mass.  208, 
59  N.  E.  650;  Burke  v.  Coyne,  188  Mass.  401-404,  74  N.  E.  942. 
On  principle  there  cannot  be  a  recovery  upon  an  averment  of  perform- 
ance in  such  a  case,  because  the  proof  shows  a  variance. 

The  acceptance  of  the  work  as  a  substantial  performance  of  the 
contract,  notwithstanding  known  omissions  to  do  that  which  was  re- 
quired, is  a  waiver,  and,  upon  an  averment  of  performance,  a  plaintiff 
cannot  recover  by  proof  of  a  waiver.  Colt  v.  Miller,  10  Cush.  49 ; 
Palmer  v.  Sawyer,  114  Mass.  1;  Freeland  v.  Ritz,  154  Mass.  257,  28 
N.  E.  226,  12  L.  R.  A.  561,  26  Am.  St.  Rep.  244. 

The  ruling  as  to  recovery  under  the  second  count  was  erroneous. 
Whether  the  words,  "as  agreed"  in  the  statement  of  the  first  item-  in 
the  first  count  would  prevent  the  maintenance  of  the  action  on  that 
item  it  is  not  necessary  to  consider,  for  the  finding  was  on  the  special 
contract,  and  only  upon  items  2  to  40  in  the  first  count. 

As  the  defendant  relied  upon  these  questions  of  pleading  at  the  trial, 
and,  so  far  as  appears  might  have  tried  her  case  differently  if  she  had 
not  relied  upon  them,  she  is  entitled  to  a  new  trial. 
^Exceptions  sustained." 

5  "Formerly  it  was  generally  held  in  this  country,  as  it  is  held  in  England, 
that  a  contractor  could  not  recover  under  a  building  contract,  unless  there  was 
a  full  and  complete  performance  of  it,  or  a  waiver  as  to  the  parts  not  per- 
formed, and  that  he  could  not  recover  on  a  quantum  meruit  alter  a  partial 
performance  from  which  the  owner  had  received  benefit,  unless  there  had  been 
such  subsequent  dealings  between  the  parties  as  would  create  an  implied  con- 
tract to  pay  for  what  had  been  done.  Smith  v.  Brady,  17  N.  Y.  1S5,  72 
Am.  Dec.  442;  Ellis  v.  Hamlen,  3  Taunt.  52;  Munro  v.  Butt,  8  E.  &  B. 
738;  Sumpter  v.  Hedges,  [1898]  1  Q.  B.  673,  and  cases  cited.  But  in 
most  of  the  American  states  a  more  liberal  doctrine  has  been  established  in 


394  BENEFITS   UNDER   CONTHACT   PARTIALLY   PERFORMED  (Ch.  '6 


FEENEY  V.  BARDSLEY. 

(Court  of  Errors  and  Appeals  of  New  Jersey,  1901.     66  N,  J.  Law,  239,  49      . 

AU.  443.) 

Error  to  supreme  court. 

Action  by  Owen  Feeney  against  Joseph  Bardsley.  Judgment  for 
plaintiff.     Defendant  brings  error. 

Van  SyckEL,  J.®  This  suit  was  brought  by  Feeney,  the  defendant 
in  error,  to  recover  the  balance  alleged  to  be  due  to  him  upon  a  build- 
ing contract.  The  plaintiff  in  error  relies  for  reversal  upon  alleged  er- 
rors in  the  charge  of  the  trial  court.  The  trial  judge  charged  that,  if  the 
contractor  did  not  substantially  comply  with  the  contract,  he  could  not 
recover.  He  told  the  jury  that,  if  a  builder  contracts  to  erect  a  two 
story  and  a  half  house,  and  he  erects  only  a  one  story  and  a  half  house, 
he  cannot  recover,  although  he  has  added  value  to  the  owner's  property. 
But,  if  the  contractor  has  substantially  performed  his  contract,  even 
though  he  has  failed  to  do  so  in  some  minor  particulars,  he  is  entitled 
to  recover  the  contract  price,  less  what  will  be  a  fair  allowance  to  the 

favor  of  contractors  for  the  construction  of  buildings,  and  it  is  generally 
held  that  if  a  contractor  has  attempted  in  good  faith  to  perform  his  contract 
and  has  substantially  performed  it — although  by  inadvertence  he  has  failed 
to  perform  it  literally  according  to  its  terms — he  may  recover  under  the 
contract,  with  a  proper  deduction  to  the  owner  for  the  imperfections  or  omis- 
sions in  the  performance.  Woodward  v.  Fuller,  80  N.  Y.  312;  Phillip  v. 
Gallant,  62  N.  Y.  256;  Nolan  v.  Whitney,  88  N.  Y.  648;  Oberlies  v.  Bulling- 
er  (1S92)  132  N.  Y.  598,  30  N.  E.  999;  Elliott  v.  Caldwell,  43  Minn.  357, 
45  N.  W.  845,  9  L.  R.  A.  52 ;  Jones  &  Hotchkiss  Co.  v.  Davenport,  74  Conn. 
418,  50  Atl.  1028 ;  Pitcairn  v.  Philip  Hiss  Co.,  113  Fed  492,  51  C.  C.  A.  323 ; 
Page  on  Contracts,  §§  1603,  1604,  and  cases  cited.  *  *  *  The  reason 
for  this  construction  of  such  contracts  is  in  part  the  difficulty  of  attain- 
ing perfection  in  the  quality  of  the  materials  and  workmanship,  and  of 
entirely  correcting  the  effect  of  a  slight  inadvertence,  and  the  injustice  of  al- 
lowing the  owner  to  retain  without  compensation  the  benefit  of  a  costly  build- 
ing upon  his  real  estate,  that  is  substantially,  but  not  exactly,  such  as  he 
agreed  to  pay  for.  In  none  of  the  courts  of  this  country',  so  far  as  we  know, 
is  the  contractor  left  remediless  under  conditions  like  those  above  stated.  The 
recovery  permitted  is  generally  upon  the  basis  of  the  contract,  with  a  deduc- 
tion for  the  difference  between  the  value  of  the  substantial  performance  shown 
and  the  complete  performance  which  would  be  paid  for  at  the  contract  price. 
In  Massachusetts  the  hardship  upon  the  contractor  of  leaving  him  without 
compensation,  if,  acting  in  good  faith,  he  performs  a  contract  substantially, 
but  fails  to  perform  it  completely,  was  early  recognized  by  the  courts,  and 
it  was  decided  that  under  such  circumstances  he  might  recover  upon  a  quan- 
tum meruit.  In  Massachusetts  this  method  of  obtaining  relief  has  ever  since 
been  treated  as  the  only  one  for  such  cases,  and  has  often  been  referred  to 
as  the  doctrine  stated  in  Hayward  v.  Leonard,  7  Pick.  186,  19  Am.  Dec. 
268.  Because  of  this  rule  it  is  held  to  this  day  that,  if  the  declaration  is 
upon  the  contract  alone,  there  can  be  no  recovery  under  a  building  contract 
unless  there  has  been  a  complete  performance  of  it.  Allen  v.  Burns,  201 
Mass.  74,  87  N.  E.  194,  and  cases  cited."  Per  Knowlton,  C.  J.,  in  Bowen  v. 
Kimball  (ltX)9)  203  Mass.  364,  89  N.  E.  542,  133  Am.  St.  Rep.  302. 

A  valuable  collection  of  the  authorities  on  "substantial  performance"  is 
found  in  a  note  in  24  L.  R.  A.  (N.  S.)  337. 

6  A  portion  of  the  opinion  is  omitted.  Because  of  error  committed  by  the 
court  below  as  to  the  point  discussed  in  such  omitted  portion  a  new  trial  was 
granted. 


Sec.  4)  REPUDIATION  OR  SUBSTANTIAL  BREACH  3^5 

owner  to  make  good  the  defects  in  the  performance  of  the  contract. 
The  court  further  charged  that,  if  there  was  not  a  substantial  com- 
pHance  with  the  contract,  the  jury  could  find  a  verdict  for  the  contrac- 
tor for  what  the  building  was  reasonably  worth,  if  the  owner  had  ac- 
cepted the  house;  but  that  in  determining  the  question  of  acceptance 
it  was  not  sufficient  to  find  that  the  owner  was  occupying  it.^  It  is 
a  house  built  upon  his  land,  and,  unless  he  tears  it  down,  he  must 
make  some  use  of  it,  so  that  the  jury  must  find  some  positive  act  on  his 
part  showing  an  intention  to  accept  it.  This  instruction  to  the  jury 
is  strictly  in  accordance  with  the  views  expressed  by  Mr.  Justice 
Magie  in  the  supreme  court  in  Bozarth  v.  Dudley,  44  N.  J.  Law,  304, 
43  Am.  Rep.  373.  Since  the  publication  of  that  decision  it  has  been 
applied  in  the  trial  of  similar  issues,  and  it  has  been  cited  with  ap- 
probation in  this  court  in  Mackinson  v,  Conlon,  55  N.  J.  Law,  566,  27 
Atl.  930.  In  this  respect  there  is  no  error  in  the  charge  of  the  trial 
court.  ^     *     *     * 

In  my  opinion,  the  judgment  below  should  be  reversed,  and  a  venire 
de  novo  awarded. 

7  "Now,  admitting  that  in  the  case  of  an  independent  chattel,  a  piece  of 
furniture  for  example  to  be  made  under  a  special  contract,  and  some  tenn, 
which  in  itself  amounted  to  a  condition  precedent,  being  unperformed,  if  the 
party  for  whom  it  was  to  be  made  had  yet  accepted  it,  an  action  might,  upon 
obvious  grounds,  be  maintained  either  on  the  special  contract  with  a  dispen- 
sation of-  the  conditions  alleged,  or  an  implied  contract  to  pay  for  it  according 
to  its  value;  it  does  not  seem  to  us  that  there  are  any  grounds  from  vt-hich 
the  same  conclusion  can  possibly  follow  in  respect  of  a  building  to  be  erected, 
or  repairs  done,  or  alterations  made,  to  a  building  on  a  man's  own  land,  from 
the  mere  fact  of  his  taking  possession.  Indeed  tlie  tenu  'taking  possession'  is 
scarcely  a  correct  one.  The  owner  of  the  land  is  never  out  of  possession 
while  the  work  is  being  done.  But,  using  the  term  in  a  popular  sense,  what 
is  he,  under  the  supposed  circumstances,  to  do:  The  contractor  leaves  an 
unhnished  or  ill  constnicted  building  on  his  land.  He  cannot,  without  ex- 
pensive, it  may  be  tedious,  litigation,  compel  him  to  complete  it  according 
to  the  terms  of  his  contract ;  what  has  been  done  may  show  his  inability  to 
complete  it  properly;  the  building  may  be  very  imperfect,  or  inconvenient, 
or  the  repairs  very  unsound ;  yet  it  may  be  essential  to  the  owner  to  occupy 
the  residence,  if  it  be  only  to  pull  down  and  replace  all  that  has  been  done 
before.  How  then  does  mere  possession  raise  any  inference  of  a  waiver  of 
the  conditions  precedent  of  the  special  contract,  or  of  the  entering  into  a 
new  one?  If  indeed  the  defendant  had  done  anything,  coupled  with  the  taking 
possession,  which  had  prevented  the  performance  of  the  special  contract,  as  if 
he  had  forbidden  the  surveyor  from  entering  to  inspect  the  work,  or  if,  the 
failure  in  complete  performance  being  very  slight,  the  defendant  had  used  any 
language,  or  done  any  act,  from  which  acquiescence  on  his  part  might  have 
been  reasonably  inferred,  the  case  would  have  been  very  different.  Here 
there  was  nothing  of  tliat  kind ;  the  reliance  of  the  plaintiff  was  simply  on 
the  defendant's  possession."  Per  Lord  Campbell,  C.  J.,  in  Mum-o.v.  Butt 
(1858)  8  El.  &  Bl.  738,  120  Eng.  Kep.  275. 

See,  to  the  same  eifect.  Smith  v.  Brady  (1858)  17  N.  Y.  173,  72  Am.  Dec. 
442;  Gove  &  Co.  v.  I.  C.  M.  &  M.  Co.  (ISSS)  16  Or.  93,  17  Pac.  740;  Elliott 
V.  Caldwell  (1890)  43  Minn.  357,  45  N.  W.  845,  9  L.  R.  A.  52 ;  Mountain  Terrace 
Land  Co.  v.  Brewer  &  Jones  (1910)  1G5  Ala.  242,  51  South.  559.  Further  au- 
Uiorities  are  collected  in  the  notes  in  IG  L.  R.  A.  (N.  S.)  489,  and  20  L.  R.  A. 
(N.  S.)  873. 

8  In  the  following  cases  a  recovery  was  denied  where  plaintiff  shov/ed  part 
performance  of  a  building  contract  falling  short  of  substantial  r)erf<)rmance, 
even  though  it  did  not  appear  that  plaintiff  was  guilty  of  a  willful  breach: 


396  BENEFITS   UNDER   CONTRACT   PARTIALLY   PERFORMED  (Ch.  3 

PINCHES  V.  SWEDISH  EVANGELICAL  LUTHERAN 

CHURCH. 

(Supreme  Court  of  Errors  of  Conuecticut,  1S87.     55  Conn.  183,  10  Atl.  2(54.) 

Assumpsit  upon  counts  for  labor  and  material. 

BeardslEy,  J.  The  plaintiff  claims  to  recover  upon  the  counts  for 
work  and  materials  furnished  in  the  erection  of  a  church  edifice  for 
the  defendants.  A  written  contract  was  entered  into  by  the  parties, 
providing  that  the  plaintiff  should  erect  the  edifice  upon  the  land  of 
the  defendants,  in  accordance  with  certain  plans  and  specifications. 
The  plaintiff  completed  the  building  on  the  twenty-first  day  of  January, 
1885,  when  the  defendants  entered  into  the  full  possession  and  occu- 
pancy of  the  same.  The  building  varies  from  the  requirements  of  the 
contract  in  several  material  particulars.  The  ceiling  is  two  feet 
lower,  the  windows  are  shorter  and  narrower,  and  the  seats  are  nar- 
rower than  the  specifications  require,  and  there  are  some  other  varia- 
tions and  omissions.  The  defect  in  the  height  of  the  ceiling  is  due 
to  the  combined  error  of  the  plaintiff  and  the  defendants'  architect. 
The  other  changes  and  omissions  occurred  through  the  inadvertence 
of  the  plaintiff  and  his  workmen.  The  defendants  knew  of  the  change 
in  the  height  of  the  ceiling  when  they  took  possession  of  the  build- 
ing, and  of  the  changes  in  the  windows  and  seats  shortly  afterwards, 
and  objected  to  the  changes  as  soon  as  they  discovered  them. 

The  plaintiff,  in  doing  the  work  and  furnishing  the  materials,  acted 
in  good  faith,  and  the  building,  as  completed,  is  reasonably  adapted 
to  the  wants  and  requirements  of  the  defendants,  and  its  use  is  bene- 
ficial to  them.  It  would  be  practically  impossible  to  make  the  building 
conform  to  the  contract  without  taking  it  partially  down  and  rebuild- 
ing it.  The  defendants,  upon  the  trial  of  the  case,  offered  evidence  to 
prove  the  amount  it  would  cost  to  make  the  building  conform  to  the 
contract;  claiming  that  they  were  entitled  to  such  sum  as  damages. 
The  court  excluded  the  evidence,  and  the  only  error  assigned  is  the 
exclusion  of  that  evidence.  The  defendants'  claim  rests  upon  the  as- 
sumption that  the  liability  of  the  plaintiff  to  damages  is  not  affected 
by  the  fact  that  his  deviation  from  the  contract  was  unintentional,  nor 
by  the  advantageous  use  of  the  building,  but  that  it  is  the  same  as 

Sumpter  v.  Hedges  (1898)  1  Q.  B.  673.  (Plaintiff  abandoned  work  after  part 
performance  for  lack  of  money  to  complete  the  contract.)  Poynter  v.  United 
States  (1906)  41  Ct.  CI.  443.  (Plaintiff  became  bankrupt  and  consequently  was 
unable  to  complete  performance  of  contract.  The  court  laid  stress  on  the  en- 
tirety of  the  contract.  The  court's  view  that  defendant  received  no  benefit 
seems  untenable.)  Serber  v.  McLaughlin  (1901)  97  111.  App.  104.  (Labor  union 
called  off  plaintiff's  men  because  a  non-union  carpenter  in  defendant's  employ 
was  working  on  the  same  building.)  I'resbyterian  Church  v.  Hoopes  A.  S.  C. 
&  P.  Co.  (1887)  66  Md.  598,  8  Atl.  752.  Riddell  v.  Peck-WilUamson  Heating 
&  Ventilating  Co.  (1902)  27  Mont.  44,  69  Pac.  241.  (Plaintiff  forced  to  abandon 
contract  after  part  performance  because  of  lack  of  funds.)  Smith  v.  Brady 
a858)  17  N.  Y.  173,  72  Am.  Dec.  442. 


Sec.  4)  REPUDIATION   OR   SUBSTANTIAL   BREACH  397 

it  would  have  been  if  he  had  willfully  departed  from  the  contract, 
and  they  had  rejected  the  building,  and  received  no  benefit  from  it. 

The  defendants'  claim  is  undoubtedly  supported  by  decisions  of 
courts  of  eminent  authority  in  England  and  this  country,  which  hold 
that  no  recovery  can  be  had  for  labor  or  materials  furnished  under 
a  special  contract,  unless  the  contract  has  been  performed,  or  its  per- 
formance has  been  dispensed  with  by  the  other  party. 

The  hardship  of  this  rule  upon  the  contractor  who  has  undesignedly 
violated  his  contract,  and  the  inequitable  advantage  it  gives  to  the 
party  who  receives  and  retains  the  benefit  of  his  labor  and  materials, 
has  led  to  its  qualification ;  and  the  weight  of  authority  is  now  clearly 
in  favor  of  allowing  compeHsation  for  services  rendered  and  materials 
furnished  under  a  special  contract,  but  not  in  entire  conformity  with 
it,  provided  that  the  deviation  from  the  contract  w^as  not  willful,  and 
the  other  party  has  availed  himself  of  and  been  benefited  by  such  labor 
and  materials,*  and,  as  a  general  rule,  the  amount  of  such  compensa- 

9  "It  is  well  settled  that  one  is  not  compelled  to  accept  work  which  does  not 
conform  to  the  contract,  and  that  no  recovery  can  be  had  on  the  contract 
where  the  contractor  has  not  complied  with  the  specifications.  *  *  *  When, 
however,  a  building  has  been  erected,  though  it  does  not  comply  with  the  con- 
tract and  specifications,  and  the  owner  of  the  land  has  talien  possession,  a  re- 
covery can  be  had  by  the  contractor  on  the  quantum  meruit.  In  the  present 
case  the  structure  was  for  a  dwelling  house.  It  was  completed  for  that  pur- 
pose, and  was  suitable  for  it,  though  not  in  compliance  with  the  specifications. 
The  defendant  took  possession  of  it  in  April,  1895.  Before  taking  possession 
he  notified  the  plaintiff  in  writing  that  he  did  not  accept  it  as  having  been 
built  in  accordance  with  the  contract,  and  that  he  would  hold  them  responsible 
for  all  sums  that  it  would  cost  to  put  it  in  shape  to  use.  Having  taken  posses- 
sion, and  appropriated  the  material  and  labor  of  the  plaintiff's  which  had 
gone  into  the  building,  the  damages  would  be  measured  under  the  above  rule." 
Eaton  V.  Gladwell  (1899)  121  Mich.  444,  80  N.  W.  292. 

See,  to  the  same  effect,  WMte  v.  Oliver  (1853)  36  Me.  92 ;  Katz  v.  Bedford 
(1S88)  77  Cal.  319,  19  Pac.  523,  1  L.  R.  A.  826 ;  Walstrom  v.  Oliver- Watts  Const. 
Co.  (1909)  161  Ala.  608,  50  South.  46.  This  doctrine  prevails  in  most  jurisdic- 
tions.    The  authorities  are  collected  in  Woodward,  Quasi  Contracts,  §  175. 

In  Manitowoc  Steam  Boiler  Works  v.  Manitowoc  Glue  Co.  (1903)  120  Wis. 
1,  97  N.  W.  515,  it  was  held  that  a  use  by  defendant  of  a  defective  boiler  after 
notice  to  plaintiff  to  perfect  the  same  or  to  remove  it  cannot  be  deemed  an  ac- 
ceptance. The  court  said :  "Doubtless  the  fact,  unexplained,  that  defendant 
made  use  of  the  boiler,  which  had  been  built  into  its  boiler  house  and  con- 
nected with  the  steam  pipes  in  its  factory,  is  an  evidentiary  circumstance 
having  some  tendency  to  show  acceptance,  but  such  conduct  is  by  no  means 
conclusive  when  a  party  cannot  forego  use  of  the  appliance  without  at  the 
same  time  giving  up  the  use  of  his  own  premises.  Thus  one  whose  land  has 
been  plowed  by  another  cannot  be  said  to  accept  tliat  plowing  as  a  service 
merely  because  he  sows  seed  and  raises  a  crop  on  the  land.  Smith  v. 
Brady,  17  N.  Y.  188,  72  Am.  Dec.  442.  Nor  because  a  city  runs  sewerage 
through  filter  beds  at  its  sewer  outlet  does  it  necessarily  accept  them.  Madi- 
son v.  American  Sanitary  Engineering  Co.,  118  Wis.  480,  95  N.  W.  1097. 
Nor  because  the  owner  lives  in  his  house,  and  uses  the  defective  furnace 
therein,  does  he  necessarily  accept  the  latter.  Williams  v.  Thrall,  101  Wis. 
337,  76  N.  W.  599;  Fuller  Warren  Co.  v.  Shurts,  95  Wis.  006,  70  N.  W. 
683.  Nor  because  one  takes  his  own  logs  does  he  accept  the  cutting  and 
driving  done  upon  them  by  another.  McDonald  v.  Bryant,  73  Wis.  20. 
26,  40  N.  W,  665.  In  Smith  v.  Scott's  Ridge  School  Dist.,  20  Conn.  312. 
it  was  held  suflicient  to  negative  inference  of  acceptance  of  school  house  that 
the  district  had  'done  nothing  to  prevent  its  removal  by  the  builder.'     See, 


398  BENEFITS   UNDER   CONTRACT   PARTIALLY   PERFORMED  (Cll.  3 

tion  is  to  depend  upon  the  extent  of  the  benefit  conferred,  having  ref- 
erence to  the  contract  price  for  the  entire  work.  Hayward  v. 
Leonard,  7  Pick.  (Mass.)  181,  19  Am.  Dec.  268;  Smith  v.  First 
Cong.  Meeting-House,  8  Pick.  (Mass.)  178;  Moulton  v.  McOwen, 
103  Mass.  591 ;  Dyer  v.  Jones,  8  Vt.  205 ;  Kelly  v.  Town  of  Brad- 
ford, 33  Vt.  35;  Corwin  v.  Wallace,  17  Iowa,  374;  White  v.  Oliver, 
36  Me.  92 ;  Dermott  v.  Jones,  23  How.  220,  16  L.  Ed.  442 ;  Smith 
V.  School-District,  20  Conn.  312;  Blakeslee  v.  Holt,  42  Conn.  226: 
Lucas  V.  Godwin,  3  Bing.  N.  C.  773 ;  Chit.  Cont.  569 ;  2  Greenl.  Ev.  § 
104;  Pars.  Cont.  523,  note  1.  In  cases  where  only  some  additions 
to  the  work  are  required  to  finish  it  according  to  the  contract,  or 
where,  as  in  the  case  of  Blakeslee  v.  Holt,  the  defects  in  it  may  be 
remedied  at  a  reasonable  expense,  it  seems  proper  to  deduct  from  the 
contract  price  the  sum  which  it  would  cost  to  complete  it,  as  was  done 
in  that  case. 

In  the  present  case  the  result  of  the  plaintifif's  labor  and  materials 
is  a  structure  adapted  to  the  purpose  for  which  it  was  built,  and  of 
which  the  defendants  are  in  the  use  and  enjoyment,  but  which  can- 
not be  made  to  conform  to  the  special  contract,  except  by  an  expendi- 
ture which  would  probably  deprive  the  plaintiff  of  any  compensation 
for  his  labor. 


also,  Bozarth  v  Dudley,  44  N.  J.  Law,  304,  43  Am.  Rep.  373.  From  such 
considerations  it  is  clear  that  the  mere  use  of  this  boiler  in  connection  with 
its  own  premises,  with  which  it  had  been  connected,  is  not  enough  to  over- 
come the  foregoing  evidence  that  defendant  up  to  the  time  of  the  trial 
had  elec-ted  not  to  accept  or  retain  the  boiler,  but  wished  it  removed,  and  that 
plaintitt'  fully  understood  such  election,  and  had  allowed  said  boiler  to  remain 
in  breach  of  its  agreement  to  remove  it,  because  of  an  erroneous  construction 
of  the  contract" 

See,  also.  Gwinnup  v.  Shies  (1903)  161  Ind.  500,  69  N.  E.  158.  (Plaintiff's 
use  of  a  defective  sidewalk  laid  on  his  land  not  an  acceptance.)  Jlountain 
Terrace  Land  Co.  v.  Brewer  (1910)  165  Ala.  242,  51  South.  559.  (Similar  facts 
to  those  in  preceding  case.)  Manniiiig  v.  School  District  No.  6  of  Ft.  Atkinson 
(1905)  124  Wis.  84,  102  N.  W.  356,  (Use  by  defendant  of  defective  heating 
plant  installed  by  plaintiff  held  not  an  acceptance.) 

In  Blackburn  v.  Texarkana  Gas  &  Electric  Co.  (1912)  102  Ark.  152,  143  S.  W. 
588,  the  plaintiff  drove  a  well  on  defendant's  land,  but  at  the  stipulated  depth, 
the  flow  of  water  was  less  than  half  that  called  for  by  the  contract.  Held, 
that  plaintiff  could  recover  nothing,  since  there  was  no  acceptance  by  defend- 
ant. 

On  the  other  hand,  some  courts  hold  that  if  the  structure  erected  in  good 
faith,  but  not  in  conformity  with  the  contract,  in  fact  increases  the  value  of 
defendant's  land,  and  is  used  by  defendant,  a  duty  to  compensate  the  con- 
tractor arises  independently  of  any  election  by  the  landowner  to  accept. 
Yeats  v.  Ballentine  (1874)  56  Mo.  530.  (Plaintiff  installed  in  defendant's  house 
certain  plumbing  which  did  not  confonn  to  the  specifications.  "This  idea  of 
acceptance  as  a  waiver,  is  not  the  ground  upon  which  courts  have  allowed  re- 
covery on  a  quantum  meruit  count.  It  is  because  tlie  work  is  of  value  to  the 
proprietor.")  Kelly  v.  Town  of  Bradford  (1860)  33  Vt.  35.  (Contractor,  em- 
ployed to  build  a  road  and  a  bridge,  in  good  faith  departed  in  certain  particu- 
lars from  stipulation  of  his  contract.  Held,  he  might  recover  on  a  quantum 
meruit,  since  the  contract  could  not  be  rescinded,  and  from  its  nature  plain- 
tiff's labor  must  inure  to  the  benefit  of  defendant.)  See,  also,  Bertrand  v. 
Byrd  (1844)  5  Ark,  651. 


Sec.  4)  RErUDIATION   OR   SUBSTANTIAL   BREACH  399 

We  think  that  the  court  below  properly  deducted  from  the  contract 
price  the  amount  of  the  diminution  in  the  value  of  the  building  by 
reason  of  the  plaintiff's  deviation  from  the  contract.  There  is  no 
error. 

Park,  C.  J,,  and  Carpenter,  J.,  concurred.  Pardee  and  Loomis, 
JJ.,  dissented.^" 


McGONIGLE  v.  KLEIN. 

(Court  of  Appeals  of  Colorado,  1S95.     6  Colo.  App.  306,  40  Pac.  4Go.) 

Error  to  district  court,  Pueblo  county. 

Action  by  Henry  Klein  against  James  A.  McGonigle  and  Charles  E. 
Cast  to  recover  on  a  quantum  meruit  for  services  performed  under  a 
contract  with  McGonigle  and  to  enforce  a  lien  against  the  property  of 
Gast.    From  a  judgment  for  plaintiff,  defendants  bring  error. 

Charles  E.  Gast  entered  into  a  contract  with  McGonigle  by  which 
the  latter  agreed  to  build  for  the  former  a  residence  according  to  plans 

10  In  Elliott  V.  Caldwell  (1S90)  43  Minn.  357,  45  N.  W.  845,  9  L.  R.  A.  52,  it 
was  held  that  a  contractor  who  fraudulently  conrspired  with  defendant's  super- 
visor (architect)  to  permit  the  use  of  inferior  material  of  a  sort  substantially 
different  from  that  called  for  by  the  contract  could  recover  nothing  for  his 
partial  performance  of  the  contract. 

Measure  of  Damages. — "It  was  and  Is  the  contention  of  counsel  for  defend- 
ant that  these  questions  were  proper,  and  that  the  measure  of  damages  which 
should  be  permitted,  under  the  circumstances  here  stated,  is  what  the  building 
was  reasonably  worth  as  defendant  took  possession  of  it,  not  exceeding  the 
contract  price,  less  what  it  would  reasonably  cost  to  complete  it  and  make  it 
comply  with  the  contract  and  specifications.  On  the  other  hand,  counsel  for 
plaintiffs  contend  that  the  proper  measure  of  damages  in  a  case  like  the  pres- 
ent is  the  value  of  the  building  as  it  is,  not  exceeding  the  contract  price, 
less  the  difference  in  its  value  as  it  now  stands  and  as  it  would  be  were 
it  such  a  building  as  contracted  for;  that,  to  this  difference  in  value  to 
be  deducted  In  the  case  at  bar,  there  should  be  adde<l  the  damage  suffered 
by  the  defendant  by  reason  of  the  delay,  if  any,  in  constructing  the  build- 
ing, and  the  net  result  would  be  the  measure  of  recovery.  Tlie  court  be- 
low stated  the  rule  as  to  the  measure  of  damages  substantially  as  it  is 
claimed  by  counsel  for  plaintiffs.  AVhile  it  is  apparent  that  the  rule  claim- 
ed by  counsel  for  plaintiffs  and  as  given  by  the  court  is  not  the  correct 
rule,  the  defendant  had  no  reason  to  complain  of  it.  It  gave  him  a  greater 
amount  of  damages  than  he  was  entitled  to.  In  fact,  it  gave  him  double 
damages;  that  is,  under  it  he  could  take  the  building  erected  at  its  then 
value,  not  exceeding  the  contract  price,  deducting  from  that  value  'the 
difference  between  such  value  and  w'hat  it  would  be  worth  if  it  had  been 
such  a  building  as  contracted  for.  The  true  rule  to  be  applied  in  a  case 
like  the  present,  where  it  appears  that  at  the  time  the  plaintiffs  took  posses- 
sion the  building  could  not  be  made  to  comply  with  the  contract  without  its 
entire  demolition,  and  was  of  less  value  than  the  one  contracted  for,  is  the 
value  of  the  building  as  .so  completed,  not  exceeding  the  contrac-t  price,  less 
the  damages  sustained  by  the  defendant  by  reason  of  plaintiffs'  failure  to  per- 
form their  contract."  Eaton  v.  Gladwell  (1899)  121  Mich.  414,  SO  N.  W.  292. 
There  is  much  diversity  of  authority  as  to  the  proper  measure  of  dauuigos 
where  a  contractor  who  has  not  fully  performed  his  contract  sues  on  the  com- 
mon counts.  The  foregoing  extract  states  the  three  views  which  have  been 
advanced,  and  adopts  the  view  which  has  the  support  of  the  weight  of  author- 
ity.    See  Woodward,  Quasi  Contracts,  §  178;    1  Columbia  Imw  Review,  324. 


400  BENEFITS   UNDER   CONTRACT   PARTIALLY   PERFORMED  (Cll.  3 

of  architects,  as  cheaply  as  it  could  be  well  constructed ;  he  to  receive 
as  compensation  10  per  cent,  upon  the  cost  of  the  building,  Gast  to  pay 
tlie  bills  and  contracts  of  McGonigle.  The  contractor,  McGonigle,  and 
Klein,  the  defendant  in  error,  as  a  subcontractor,  entered  into  a  written 
contract  whereby  Klein  agreed  in  consideration  of  $1,155  to  perform 
all  labor  and  furnish  -all  material  to  construct  the  galvanized  iron 
cornices,  ventilators,  skylight,  gutters,  oriel  window,  and  slate  roofings 
on  Cast's  residence.  All  the  work  was  to  be  completed  in  twenty-six 
working  days  from  the  time  the  building  was  ready.  Time  to  be  ex- 
tended only  in  case  of  a  general  strike.  Klein  was  to  be  paid  on  the 
certificates  of  the  architects  as  the  work  progressed.  Klein  commenced 
work,  but  did  not  properly  prosecute  it  with  an  adequate  force  of  labor- 
ers. The  time  for  the  completion  of  the  contract  expired,  also  addi- 
tional time  passed,  and  the  work  was  neither  completed  nor  vigorously 
prosecuted.  These  delays  retarded  the  other  parts  of  the  work  on  the 
house,  and  such  work  as  Klein  did  was  not  done  in  a  good  and  work- 
manlike manner.  Klein  was  notified  by  McGonigle  several  times  that 
he  (McGonigle)  would  have  to  put  on  men  to  do  the  work  if  he  (Klein) 
did  not  proceed  faster.  Finally,  after  several  warnings,  McGonigle 
himself  put  additional  slaters  on  the  work.  Klein  then  abandoned  the 
work  entirely  with  his  men  and  tools,  saying  that  he  would  not  con- 
tinue his  work  unless  Gast  paid  the  new  men  at  his  own  expense, 
amounting  to  $65,  which  Gast  declined  to  do.  $650  had  been  paid  on 
account  of  the  contract,  which  would  have  left,  had  the  contract  been 
completed,  $505.  Klein  claimed  on  a  quantum  meruit,  for  labor  per- 
formed, $1,075;  brought  suit  for  $425  against  McGonigle  and  Gast; 
and  filed  a  petition  for  a  lien  upon  the  building  against  Gast  for  the 
same  sum.  Gast  completed  the  Klein  contract  work  at  an  expense  of 
$192  in  excess  of  the  contract  price  with  Klein.  McGonigle  and  Gast 
filed  answers  setting  up  the  facts,  alleging  nonfulfilment  and  abandon- 
ment of  the  contract  by  Klein,  and  Gast  filed  a  cross  complaint  for  the 
excess  of  $192. 

The  case  was  tried  by  the  court  without  a  jury.  The  court  held  that 
the  plaintiflf  could  recover  on  a  quantum  meruit,  gave  judgment  against 
McGonigle  for  $166,  and  decreed  a  lien  against  the  property  of  Gast 
for  the  same  amount.    Both  parties  appeal  to  this  court. 

Reed,  p.  J.^^  The  court  erred  in  holding  that  a  recovery  could  be 
had  upon  a  quantum  meruit  for  a  part  of  the  contract  work.  The  con- 
tract was  in  writing,  entire.  In  order  to  entitle  the  plaintiff  to  recover 
at  all  he  must  have  shown  either  performance  or  that  the  contract  had 
been  rescinded  or  that  the  performance  was  rendered  impossible  by 
the  wrongful  acts  and  conduct  oi  the  defendants.  On  establishing 
either  of  the  two  latter  facts,  a  quantum  meruit  recovery  could  have 
been  had,  not  otherwise.  Neither  of  these  propositions  was  established 
by  the  evidence.    Klein  having  failed  to  prosecute  his  work  and  com- 

11  The  statement  of  facts  is  an  abridgment  of  that  contained  in  the  Pacific 
Reporter. 


Sec.  4)  REPUDIATION   OR  SUBSTANTIAL   BREACH  401 

plete  it  according  to  the  terms  Oif  the  contract,  and  giving  as  a  reason 
his  inability  to  get  skilled  mechanics,  made  the  employment  of  the 
extra  men  by  the  owner  a  necessity.  The  act  of  employment  was  not 
rescission  on  the  part  of  the  owner  nor  legal  cause  for  rescission  by 
the  contractor.  The  wages  of  the  men  employed,  or  the  excess  over 
the  prices  paid  by  the  contractor,  were  trifling,  and  could  have  been 
readily  adjusted.  Klein's  contention  was  that  Gast  should  pay  the  en- 
tire wages,  without  cost  to  him,  while  he  should  receive  the  benefit  of 
their  labor.  Upon  the  refusal  of  Gast,  he  abandoned  and  withdrew. 
The  claim  of  Klein  was  trivial,  technical,  and  inequitable. 

The  key  to  the  whole  matter  appears  in  the  testimony  of  Klein.  He 
said,  "I  took  the  whole  job  at  $1,155,  and  very  soon  discovered  that  I 
had  taken  it  too  low ;"  and  it  is  evident,  from  all  the  evidence  in  the 
case,  that  he  was  seeking  some  legal  excuse  for  abrogating  the  contract. 
The  entire  testimony  shows  that  Gast  did  not  wish  or  consider  the  con- 
tract of  Klein  at  an  end,  but  insisted  upon  its  performance,  and  that 
what  was  done  in  securing  help  was  to  assist  in  its  completion  when 
Klein  had  frequently  stated  his  inability  to  secure  men.  The  authori- 
ties are  conclusive  and  unanimous  that,  under  the  circumstances  of  this 
case,  no  recovery  upon  a  quantum  meruit  or  decree  of  a  lien  could 
have  been  had.  2  Pars.  Cont.  §§  678,  679;  Davis  v.  Hubbard,  41  Wis. 
408 ;  Bloomer  v.  Bernstein,  L.  R.  9  C.  P.  588 ;  Morgan  v.  Bain,  L.  R. 
10  C.  P.  15  ;  Malbon  v.  Birney,  11  Wis.  107;  Palm  v.  Railroad  Co.,  18 
111.  217;  Sickels  v.  Pattison,  14  Wend.  (N.  Y.)  257,  28  Am.  Dec.  527; 
Phelps  v.  Sheldon,  13  Pick.  (Mass.)  50,  23  Am.  Dec.  659;  Planche  v. 
Colburn,  8  Bing.  14;  Goodman  v.  Pocock,  15  O.  B.  576;  U.  S'.  v. 
Behan,  1 10  U.  S.  339,  4  Sup.  Ct.  81,  28  L.  Ed.  168.  That  there  could  be 
no  lien  decreed,  see  Kinney  v.  Sherman,  28  111.  520;  Bank  v.  Dashiell, 
25  Grat.  (Va.)  616;  Vail  v.  Meyer,  71  Ind.  159;  Grogan  v.  Mayor, 
etc.,  of  N.  Y.,  2  E.  D.  Smith,  693.  It  is  evident  that  the  court  misap- 
prehended the  law  controlling  the  case,  and  the  judgment  and  decree 
of  a  lien  against  the  property  must  be  reversed.  I  am  clearly  of  the 
opinion  that  Gast  was,  under  the  evidence,  entitled  to  a  judgment  upon 
his  cross  complaint  for  the  damages  shown  to  have  been  sustained  by 
the  failure  of  Klein  to  perform  his  contract. 

The  judgment  and  decree  reversed.    Reversed.^' 

12  Accord:  Jennings  v.  Camp  (1816)  13  Johns.  (N.  Y.)  94,  7  Am.  Dec.  367; 
Wooten  V.  Reed  (1844)  2  Smedes  &  M.  (Miss.)  58.5;  Gill  v.  Vogler  (1879)  52 
Md.  663;  Hartman  v.  IMeighan  (1895)  171  Pa.  46,  33  Atl.  123;  Douglas  v.  City 
of  Ix)well  (1907)  194  Mass.  268,  80  N.  E.  510 ;  Lynip  v.  Alturas  Scliool  Dist.  of 
Modoc  County  (1914)  24  Cal.  App.  426,  141  Pac.  835 ;  Maxwell  &  Deleliomme 
V.  Moore  (1909)  163  Ala.  490,  50  South.  SS2. 

In  Jennings  v.  Camp,  supra,  Spencer,  J.,  said:  "The  point  is  whether  a  par- 
ty who  enters  into  a  contract,  and  performs  part  of  it,  and  then,  without  cause, 
or  the  agreement  or  fault  of  the  other  party,  but  of  his  own  volition,  abandons 
the  performance,  can  maintain  an  action  on  an  implied  assumpsit  for  labor 
actually  performed ;  and  it  seems  to  me  that  the  mere  statement  of  the  case 
shows  the  illegality  and  injustice  of  the  claim." 

In  Hartman  v.  Meighan,  supra,  Sterrett,  C.  J.,  said :  "We  are  not  aware 
Thurs.Quasi  Cont. — 26 


402  BENEFITS   UNDER   CONTRACT   PARTIALLY   PERFORMED  (Ch.  3 

KETCHUM  V.  EVERTSON. 

(Supreme  Court  of  New  York,  1S16.     13  Johns.  359,  7  Am.  Dec.  3S4,) 

This  was  an  action  of  assumpsit.  The  declaration  contained  the 
usual  money  counts,  and  a  count  upon  an  insimul  computassent. 

On  the  8th  of  March,  1811,  the  parries  at  Poughkeepsie  entered  into 
a  written  agreement,  by  which  the  defendant  contracted  to  sell  to  the 
plaintiffs  a  place  called  "the  Four  Corners,  in  the  town  of  Washington, 
and  the  lands  included  in  a  mortgage  given  by  Ebenezer  Haight  to 
Nehemiah  Rogers  and  Daniel  R.  Lambert,  dated  the  18th  of  June, 
1809,"  for  the  considerarion  of  $6,000,  part  of  which,  viz.  $700,  was  to 
be  paid  on  tlie  1st  day  of  May,  ensuing  the  date  of  agreement,  and  the 
residue  of  the  purchase  money,  over  the  sum  of  $4,000,  to  be  secured 
by  a  mortgage,  by  the  plaintiffs,  to  Rogers  and  Lam.bert,  to  be  paid  in 
three  annual  instalments,  and  the  residue,  to  wit,  the  sum, of  $4,000, 
due  to  the  heirs  of  Nicholas  Evertson,  deceased,  either  to  remain  under 
the  mortgage,  then  existing,  or  a  new  mortgage  to  be  given  by  the 
plaintiffs,  as  the  defendant  should  elect;  the  whole  business  to  be 
transacted,  and  the  defendant  to  give  a  deed  of  the  premises  to  the 
plaintiffs  on  the  1st  day  of  May,  then  next,  at  the  office  of  Rudd  and 
Evertson,  in  Poughkeepsie. 

The  plaintiffs  entered  into  possession  of  the  premises  under  this 
agreement.  On  the  first  of  May,  1811,  a  quit-claim  deed  for  the  prem- 
ises, to  the  plaintiffs,  executed  by  the  defendant,  but  not  by  his  wife, 
was  left  at  the  office  of  Rudd  and  Evertson,  in  Poughkeepsie,  ready  to 
be  delivered  to  the  plaintiffs,  who  did  not  call  for  it  until  in  the  month 
of  October,  following,  when  Ketchum  requested  the  defendant  to  give 
up  the  contract,  observing  that  his  partner,  Sweet,  had  failed ;  but  the 
defendant  refused  to  rescind  the  agreement.  Ketchum  then  objected 
that  the  deed  was  a  mere  quit-claim,  and  did  not  contain  the  usual  cove- 
nants of  seisin,  etc.,  or  warranty,  nor  was  it  signed  by  the  wife  of  the 
defendant.  The  defendant  said  the  boundaries  were  according  to  the 
mortgage  of  Rogers  and  Lambert,  under  which  the  plaintiffs  had  pur- 
chased, that  the  deed  was  pursuant  to  the  agreement,  and  the  only  one 
he  intended  to  give;  and  having  performed  every  thing  he  was  bound 
to  do  by  the  contract,  he  should  not  give  it  up ;  but  that  he  was  willing 
to  rectify  any  mistake  about  the  boundary.  Ketchum  then  tendered  a 
deed  to  the  defendant,  with  covenants  and  warranty,  who.  refused  to 
execute  it.    Ketchum  then  said  he  considered  the  contract  as  at  an  end, 

that  it  has  ever  been  recognized  as  a  sound  principle  of  tlie  law  of  contracts 
that  a  plaintiff  who  has  willfully  defaulted  in  the  substantial  performance 
of  an  entire  contract  may,  nevertheless,  recover  to  the  extent  of  his  part  per- 
formance." 

Contra  (in  accordance  with  the  rule  of  Britton  v.  Turner,  pasre  413,  infra); 
McClay  v.  Heds:e  (1864)  18  Iowa,  GO;  McKiuney  v.  Springer  (1851)  3  Ind.  59, 
54  Am.  Dec.  470;  Lee  v.  Ashbrook  (1851)  14  Mo.  378,  55  Am.  Dec.  110;  Mc- 
Knight  V.  Bertram  Heating  &  Plumbing  Co.  (1902)  65  Kan.  859,  70  Pac.  345; 
Sheldon  v.  Leahy  (1896)  111  Mich.  29,  69  N.  W.  76. 


Sec.  4)  REPUDIATION  OR  SUBSTANTIAL  BREACH  403 

and  demanded  the  $700,  which,  it  appeared,  had  been  paid  by  the  plain- 
tiffs, on  the  8th  of  May,  1811,  and  was  applied  to  pay  the  interest  on 
the  mortgage  to  N.  Evertson,  and  the  costs  due  to  the  attorneys  of 
Rogers  and  Lambert.  The  plaintiffs  quitted  the  premises  in  February 
following,  and  in  March  the  keys  were  tendered  to  the  defendant,  who 
refused  to  take  them. 

In  1813,  the  defendant  sold  the  premises  to  Stephen  Allen,  for  the 
consideration  of  $4,560,  by  a  quit-claim  deed. 

The  judge  was  of  opinion  that  the  plaintiffs  were  entitled  to  recover. 
The  jury  found  a  verdict  for  the  plaintiffs  for  the  $700  and  interest. 
A  motion  was  made  to  set  aside  the  verdict  and  for  a  new  trial. 

SpEnce;r,  J.,^^  delivered  the  opinion  of  the  Court.  The  plaintiffs 
seek  to  recover  of  the  defendant  $700,  paid  upon  a  contract  for  the 
conveyance  of  a. farm;  and  it  is  contended,  that  the  defendant  has 
violated  the  contract  in  several  respects:  1st.  In  this,  that  the  deed 
executed  by  the  defendant  contains  no  covenants  of  warranty ;  2d. 
That  the  defendant's  wife  has  not  executed  and  acknowledged  the 
deed ;  and,  3d.  That  the  boundaries  specified  in  the  deed  do  not  em- 
brace   all    the    lands    constituting    the    farm    at    the    Four    Cor- 


ners. 


*     *     * 


The  defendant,  then,  has  complied  with  his  agreement  in  all  re- 
spects; and  yet  the  plaintiffs,  who  have  paid  700  dollars  on  the  con- 
tract, and  have  totally  refused  to  perform  their  part  of  the  contract  by 
accepting  the  deed,  and  giving  a  mortgage,  seek  to  recover  back  the 
money  thus  paid,  on  the  ground  that  the  defendant  has  sold  the  farm, 
and  thus  rescinded  the  contract. 

Where  there  is  no  agreement  subsisting  between  the  parties,  but  the 
same  has  been  put  an  end  to,  by  the  election  or  refusal  of  the  defend- 
ant to  perform  it,  in  general,  the  other  party  may  recover  back  any 
money  paid  by  him  in  part  performance.  This  was  so  decided  in  Ray- 
mond and  others  v.  Bearnard,  12  Johns.  274,  7  Am.  Dec.  317. 

It  may  be  asserted,  with  confidence,  that  a  party  who  has  advanced 
money,  or  done  an  act  in  part  performance  of  an  agreement,  and  then 
stops  short,  and  refuses  to  proceed  to  the  ultimate  conclusion  of  the 
agreement,  the  other  party  being  ready  and  willing  to  proceed  and 
fulfil  all  his  stipulations,  according  to  the  contract,  has  never  been  suf- 
fered to  recover  for  what  has  been  thus  advanced,  or  done.  The  plain- 
tiffs are  seeking  to  recover  the  money  advanced  on  a  contract,  every 
part  of  which  the  defendant  has  performed,  as  far  as  he  could  by  his 
own  acts,  when  they  have  voluntarily  and  causelessly  refused  to  pror- 
ceed,  and  thus  have,  themselves,  rescinded  the  contract. 

It  would  be  an  alarming  doctrine,  to  hold,  that  the  plaintiffs  might 
violate  tlie  contract,  and,  because  they  chose  to  do  so,  mal<e  their  own 

18  The  statement  of  facts  is  abridged  and  a  portion  of  the  opinion  is  omitted. 

1*  The  court  held  that  the  quit-claim  deed  executed  by  detVndant  and  left 
at  the  oflice  of  Rudd  and  Evertson  to  be  delivered  to  plaintiffs  conformed  to 
the  terms  of  the  contract  between  them. 


404  BENEFITS   UNDER   CONTRACT   PARTIALLY   PERFORMED  (Cll.  3 

infraction  of  the  agreement  the  basis  of  an  action  for  money  had  and 
received.  Every  man  who  makes  a  bad  bargain,  and  has  advanced 
money  upon  it,  would  have  the  same  right  to  recover  it  back  that  the 
plaintiffs  have.  The  defendant's  subsequent  sale  of  the  land  does  not 
alter  the  case;  the  plaintiffs  had  not  only  abandoned  the  possession, 
but  expressly  refused  to  proceed,  and  renounced  the  contract.  To  say 
that  the  subsequent  sale  of  the  land  gives  a  right  to  the  plaintiffs  to  re- 
cover back  the  money  paid  on  the  contract,  would,  in  effect,  be  saying, 
that  the  defendant  could  never  sell  it,  without  subjecting  himself  to  an 
action  by  the  plaintiffs.  Why  should  he  not  sell?  The  plaintiffs  re- 
nounced the  contract,  and  peremptorily  refused  to  fulfil  it;  it  was  in 
vain,  therefore,  to  keep  the  land  for  them.  The  plaintiffs  cannot,  by 
their  own  wrongful  act,  impose  upon  the  defendant  the  necessity  of 
retaining  property  which  his  exigencies  may  require  him  to  sell ;  this 
would  be  most  unreasonable  and  unjust,  and  is  not  sanctioned  by  any 
principle  of  law. 

There  must  be  a  new  trial,  with  costs  to  abide  the  event  of  the  suit 
New  trial  granted.^' 

POSEY  v.  GARTH. 
(Supreme  Court  of  Missouri,  1841.    7  Mo.  94,  37  Am.  Dec.  183.) 

Appeal  from  the  Howard  Circuit  Court. 

Scott,  J.  Bird  Posey  was  employed  by  Dabney  Garth,  as  overseer, 
for  one  year,  at  the  price  of  one  hundred  and  seventy-five  dollars ;  his 
term  of  service  commenced  on  the  1st  January,  1838,  and  he  continued 
industriously  employed  for  Garth  until  some  time  in  April  following, 
when  Garth  told  Posey  that  he  must  leave  his  service,  that  he  had 
been  negligent,  and  had  maltreated  and  injured  his  negroes:  there- 
upon Posey  left  Garth's  employment.  It  appears  that  Posey,  the  day 
before  he  was  ordered  to  leave  Garth's  service,  for  some  fault  sup- 
posed to  have  been  committed  by  one  of  Garth's  negroes  under  his 
control,  attempted  to  punish  the  negro  by  whipping;  the  negro,  the 
bill  of  exceptions  states,  resisted  by  refusing  to  obey  Posey's  order. 
Posey  thereupon  struck  the  negro  with  a  handspike  and  knocked  him 
down,  and  then  beat  him  with  the  handspike  in  such  a  manner  that 
in  four  days  thereafter  he  died  from  the  effect  of  the  blows.  Posey 
afterwards  instituted  an  action  against  Garth  for  his  year's  wages, 
claiming  the  whole  amount,  and  recovered  sixty-one  dollars,  the  costs 
being  adjudged  against  him.  A  new  trial  was  asked  for  by  Posey,  and 
refused,  and  he  brings  this  cause  here  by  appeal.  Under  this  state  of 
facts  is  he  aggrieved  by  the  judgment  of  the  court  below? 

15  Accord:  Downey  v.  Riggs  (1897)  102  Iowa,  88,  70  N.  W.  1091;  Hillyard 
V.  Banchor  (1911)  85  Kan.  516,  118  Pac.  67;  Sanders  v.  Brock  (1911)  230  Pa. 
609,  79  Atl.  772,  35  L.  R.  A.  (N.  S.)  532  (with  note  collecting  authorities). 

Contra :  Giles  v.  Gullion  (1859)  13  Ind.  487 ;  Michigan  Yacht  Co.  v.  Busch 
(1906)  143  Fed.  929,  75  C.  C.  A.  109. 


Sec.  4)  REPUDIATION   OR   SUBSTANTIAL   BREACH  405 

If  a  person  retain  a  servant  for  a  year  at  wages,  the  performance 
of  the  service  is  a  condition  precedent  to  the  payment  of  wages,  and 
the  servant  cannot  recover  them  before  he  has  performed  the  year's 
service.  If  he  is  prevented  by  his  employer  from  fulfilling  his  con- 
tract, and  is  wantonly  and  without  sufficient  cause  discharged  before 
the  expiration  of  the  period  for  which  he  was  hired,  he  is  entitled  to 
the  wages  for  the  whole  period  he  was  to  serve :  but  if  there  is  any 
fault  or  misconduct  in  him  toward  his  employer  sufficient  to  warrant 
his  discharge,  and  in  consequence  thereof  he  is  driven  from  the  service 
of  the  person  by  whom  he  is  hired,  he  is  not  entitled  to  any  wages. 
Reciprocal  justice  requires  that  such  should  be  the  law  of  contracts  of 
this  character ;  if  it  were  otherwise,  then  while  the  employer  is  bound 
by  his  contract  to  retain  the  servant,  although  it  may  be  against  his 
inclination,  for  the  whole  period  of  his  service,  or  pay  him  the  whole 
wages,  the  servant  by  his  misconduct  may  compel  his  employer  for 
his  own  security  to  discharge  him,  and  then  recover  the  wages  for  the 
term  he  has  served.  So,  while  the  contract  is  binding  on  the  employer, 
the  servant  is  bound  or  not,  at  his  option.  Such  a  construction  of  the 
contract  would  encourage  fraud  and  wickedness  in  servants,  and  in- 
duce them,  whenever  their  inclination  prompts,  to  be  guilty  of  such 
enormities  as  will  compel  their  discharge. 

Justice  Lawrence  remarked,  in  the  case  of  Cutter  v.  Powell,  6  Term 
R.  327,  that  a  servant,  although  hired  in  a  general  way,  is  considered 
to  be  hired  with  reference  to  the  general  understanding  on  the  sub- 
ject, that  the  servant  shall  be  entitled  to  his  wages  for  the  time,  though 
he  does  not  continue  in  the  service  during  the  whole  year.  This  re- 
mark of  the  learned  judge  torn  from  its  context  and  placed  in  some 
elementary  works,  has  been  made  to  give  countenance  to  the  idea,  that 
if  there  is  a  termination  of  the  service  by  the  fault  of  the  servant  be- 
fore the  time  agreed  on,  the  servant  is  entitled  to  wages  for  the  time 
he  served,  when  it  is  obvious  the  judge  was  speaking  of  the  termina- 
tion of  the  contract  without  the  fault  of  the  servant,  for  it  is  observa- 
ble that  this  principle  was  stated  in  a  case  which  the  court  unanimously 
held,  that  if  a  sailor  hired  for  a  voyage,  take  a  promissory  note  from 
his  employer  for  a  certain  sum  provided  he  proceed,  continue  and  do 
his  duty  on  board  for  the  voyage,  and  before  the  arrival  of  the  ship, 
he  dies,  no  wages  can  be  claimed  either  on  the  contract  or  on  a  quan- 
tum meruit.  This  case  however  was  decided  on  the  peculiar  nature 
of  the  contract,  and  is  not  to  be  regarded  as  an  authority  in  support 
of  the  doctrine,  that  if  a  servant  who  is  hired  for  a  year  die  in  tlie  mid- 
dle of  it,  his  executor  cannot  recover  part  of  his  wages  in  proportion 
to  the  time  of  service.    This  was  the  old  law,  it  is  otherwise  now. 

Was  the  conduct  of  Posey  such  as  to  warrant  his  discharge  ?  Have 
mercy  and  humanity  left  this  earth,  that  tliis  question  should  be  asked  ? 
Could  Garth,  as  a  master,  owing  protection  to  his  slaves,  any  longer 
retain  such  a  man  in  his  service  ?  He  not  only  had  a  right  to  discharge 
him,  but  it  was  his  duty  to  do  it.    A  mere  disobedience  of  orders  seems 


406      BENEFITS  UNDER  CONTRACT  PARTIALLY  PERFORMED    (Ch.  3 

to  have  been  the  fault  of  the  negro;  for  although  the  record  states 
that  the  negro  resisted,  yet  it  appears  that  his  resistance  consisted  in 
disobeying  orders,  and  that,  too,  when  he  was  about  to  be  whipped. 
Should  one  retain  in  his  employment  another  who,  for  such  a  provoca- 
tion, would  with  a  handspike  knock  down  his  slave,  and  then  continue 
his  blows  until  they  caused  his  death? 

As  it  regards  the  question  of  costs,  inasmuch  as  the  plaintiff  was 
not  entitled  to  recover  anything,  he  cannot  complain  that  they  were 
adjudged  against  him,  and  as  the  defendant  does  not  seek  to  reverse 
the  judgment,  let  it  be  affirmed.^® 


BYRD  v.  BOYD. 
(Court  of  Appeals  of  South  Carolina,  1S27.    4  McCord,  246,  17  Am.  Dec.  740.) 

The  plaintiff  brought  suit  against  the  defendant,  on  a  written  con- 
tract for  wages  for  one  year,  as  overseer.  The  contract  was  for  $180 
for  the  year.  The  plaintiff  managed  the  crop  well,  but  in  July  he 
made  use  of  abusive  language  to  the  defendant's  daughter,  for  which 
he  was  turned  away. 

Huger,  J.,  who  tried  tlie  cause,  charged  the  jury  that  the  contract 
was  entire  for  the  year;  tliat  if  the  plaintiff  had  been  properly  turned 
away  he  ought  to  recover  nothing.  If  the  defendant  had  turned  him 
off  improperly  the  plaintiff  ought  to  recover  the  whole  amount. 

The  jury  found  a  verdict  in  favor  of  the  plaintiff  for  the  whole 
amount  of  the  year's  wages.     The  defendant  appealed. 

Johnson,  J.  The  only  ground  necessary  to  be  considered  in  this 
case  is  the  supposed  misdirection  of  the  presiding  judge  in  charging 
the  jury  that  they  were  not  at  liberty  under  any  circumstances  to  ap- 
portion the  compensation  of  the  plaintiff  to  the  services  actually  ren- 
dered, and  that  they  were  bound  to  allow  him  the  stipulated  wages 
for  the  year  or  nothing.  I  have  found  it  very  difificult  to  reconcile 
the  cases  on  this  subject,  or  to  extract  from  them  any  satisfactory 
and  well  defined  rule.     The  English  cases  go  very  far  in  establishing 

16  Accord  :  Spain  v.  Araott  (1S17)  2  Starlde,  256,  3  E.  C.  L.  R  400  (plaintiff 
discbar.ired  for  willful  disobedience) ;  Turner  v.  Robinson  (183.">)  5  B.  «fc  Ad.  789 
(plaintiff  discharged  for  disloyal  conduct);  I'rescott  v.  White  (18S6)  18  111. 
App.  322  (plaintitf  discharged  for  defrauding  his  employer) ;  Peterson  v.  Mayer 
(1891)  46  Minn.  468,  49  N.  W.  245,  13  L.  R.  A.  72  (plaintiff  discharged  for  em- 
bezzlement) ;  Von  Heyne  v.  Tompkins  (1903)  S9  Minn.  77,  93  N.  W.  901,  5  L. 
R.  A.  (N.  S.)  524  (plaintiff  discharged  for  unfaithfulness  and  disobedience) ; 
Huntingdon  v.  Claffin  (1868)  38  N.  Y.  182  (plaintiff  discharged  for  intoxication, 
incapacitating  him  for  service) ;  Lane  v.  Phillips  (1859)  51  N.  C.  455  (plaintiff 
discharged  for  willful  disobedience) ;  Pullen  v.  Green  (1876)  75  N.  C.  215 
(plaintiff  discharged  for  negligence  in  the  performance  6f  his  duties  as  a 
clerk) ;  Hartman  v.  Rogers  (1886)  69  Cal.  643,  11  Pac.  581  (plaintiff  discharged 
"for  good  cause");  Beach  v.  MuUin  (1870)  34  N.  J.  liaw,  343  (plaintiff  dis- 
charged for  insolence  and  willful  disobedience  of  orders).  See,  also,  Allen  v. 
Aylesworth  (1S99)  58  N.  J.  Eq.  349,  44  Atl.  178  (plaintiffs  guilty  of  breach  of 
faith). 


Sec.  4)  REPUDIATION   OR   SUBSTANTIAL   BREACH  407 

that  contracts  particularly  with  servants  and  seamen  cannot  be  ap- 
portioned, and  that  the  performance  of  the  service  is  a  condition  pre- 
cedent to  the  payment  of  wages,  and  they  result  in  the  rule,  that  when 
they  are  prevented  from  performing  it  by  the  misconduct  of  the  master, 
they  are  entitled  to  the  stipulated  wages  for  the  whole  time,  and  e  con- 
verso,  they  are  entitled  to  nothing  if  they  abandon  the  service  volun- 
tarily. And  yet  the  rule  has  been  so  far  relaxed  as  to  entitle  the  mas- 
ter to  a  deduction  of  any  sum  which  a  seaman  may  have  earned  in 
another  vessel  in  the  meantime.  Abbott,  392 ;  1  Com.  on  Cont.  362. 
This  rule  is  evidently  the  result  of  expediency,  especially  as  applied  to 
seamen ;  and  it  becomes  a  question  of  some  importance  how  far  it  is 
applicable  to  the  subject  under  consideration.  The  relation  of  em- 
ployer and  overseer,  is  one  which  the  state  of  the  country  renders  al- 
most indispensably  necessary  to  every  planter,  and  collisions  do  and 
must  necessarily  arise,  and  it  is  fit  that  there  should  be  some  settled 
rule  on  the  subject.  When  the  employer  wantonly  and  without  cause 
turns  off  his  overseer,  at  a  season  of  the  year  when  it  would  be  im- 
practicable to  get  employment  elsewhere,  and  his  time  is  wholly  lost, 
I  should  feel  no  hesitation  in  inforcing  the  rule  rigidly,  not  only  as  a 
punishment  but  as  a  just  remuneration  to  the  overseer;  and  so  when 
the  overseer  abandons  the  employer  without  cause,  or  by  his  neglect 
inflicts  a  loss  on  him  commensurate  with  the  services'  which  he  has 
performed,  he  clearly  deserves  no  compensation. 

There  is,  however,  a  third  class  of  cases  for  which  it  is  necessary 
to  provide,  and  which  are  perhaps  of  the  most  common  occurrence. 
They  are  those  where  the  employer  reaps  the  full  benefit  of  the  services 
which  have  been  rendered,  but  some  circumstance  occurs  which  ren- 
ders his  discharging  the  overseer  necessary  and  justifiable,  and  that 
perhaps  not  immediately  connected  with  the  contract,  as  in  the  present 
case.  It  happens  frequently  too  that  it  becomes  a  question  of  great 
difficulty  to  ascertain  with  whom  the  first  wrong  commenced.  I  can- 
not reconcile  it  to  my  notions  of  natural  justice,  that  the  overseer 
should  not  recover  a  compensation  for  the  services,  so  far  as  they  were 
directed,  and  which  have  been  beneficial  to  the  employer.  And  I  am 
unable  to  discover  any  evil  which  is  likely  to  result  from  submitting 
such  a  matter  to  the  sound  discretion  of  a  jury  of  the  country.  And 
as  a  matter  of  expediency  I  should  be  disposed  to  establish  it  as  a 
rule.  This  conclusion  is  I  think  supported  by  the  principle  of  the  ex- 
ception before  noticed,  and  by  the  common  case  in  which  a  party  is 
permitted  to  prove  by  way  of  defence,  that  owing  to  some  defect  in 
the  execution  of  work  and  labor  done  and  performed,  the  thing  is  not 
worth  so  much  as  was  stipulated  for ;  and  the  still  more  comprehensive 
principle,  that  a  partial  failure  of  consideration  is  a  good  ground  of 
defence.  Cases-  of  this  description  are  of  very  frequent  occurrence, 
and  although  this  question  has  never  been  judicially  determined,  it 
may  be  clearly  collected  from  them,  tliat  the  prevailing  opinion  is 
favorable  to  an  apportionment.     In  some  cases  the  jury  have  found 


408       BENEFITS  UNDER  CONTRACT  PARTIALLY  PERFORMED    (Ch.  3 

the  entire  sum,  but  in  most  they  have  apportioned  it  when  the  circum- 
stances justified  it.  Yet  the  point  has  never  been  adverted  to  by  the 
bench  or  the  bar,  (vide  Davis  v.  Crawford,  2  Mill,  Const.  403,  12  Am. 
Dec.  682,  Clancey  v.  Robertson,  2  Mill,  Const.  404,  and  Connelly  v. 
Irby,)  except  in  the  case  of  Adams  v.  Cox,  1  Nott  &  McC.  284,  which 
is  relied  on  in  opposition  to  the  motion.  But  by  referring  to  that  case, 
it  will  be  found  that  the  question  was  not  made,  nor  is  there  even  a 
dictum  in  relation  to  it. 

I  am  of  opinion,  therefore,  that  the  case  should  go  back  on  the 
ground  of  misdirection,  unbiased  by  any  opinion  of  the  court  as  to  the 
facts,  and  it  is  ordered  accordingly.    New  trial  granted.^* 


LINDNER  V.  CAPE  BREWERY  &  ICE  CO. 

(St  Louis  Court  of  Appeals.     Missouri,  1908.     131  Mo.  App.  680,  111  S.  W.  GOO.) 

Appeal  from  Cape  Girardeau  Court  of  Common  Pleas;  Benj.  F. 
Davis,  Judge. 

Action  by  Andreas  Lindner  against  the  Cape  Brewery  &  Ice  Com- 
pany.'   From  a  judgment  for  plaintiff,  defendant  appeals. 

GoODE,  J.^'  By  a  contract  entered  into  January  2,  1905,  plaintiff 
engaged  for  service  in  defendant's  brewery.  The  contract  was  in 
writing  and  its  terms  are  clear.  Plaintiff  agreed  to  continue  in  the  em- 
ploy of  defendant  for  two  years  from  the  date  of  the  instrument  at 
defendant's  brewery  in  the  city  of  Cape  Girardeau,  perform  therein 
the  duties  of  brewmaster  and  act  as  foreman  of  the  bottling  depart- 
ment, diligently  serve  defendant  in  such  other  business  as  its  manager 
might  direct,  and  carry  out  the  directions  of  said  manager  in  the  per- 

iT  Accord:  Hariston  v.  Sale  (1846)  6  Sraedes  &  M.  (Miss.)  634  (overseer  of 
plantation) ;  Robinson  v.  Sanders  (1852)  24  Miss.  391  (overseer  of  plantation) ; 
Massey  v.  Tavlor  (1868)  5  Cold.  (Tenn.)  447,  98  Am.  Dec.  429 ;  Congregation  of 
Children  of  Israel  v.  Peres  (1866)  2  Cold.  (Tenn.)  620. 

The  more  recent  decisions  allowing  a  servant  discharged  for  cause  to  re- 
cover on  quantum  meruit  for  the  value  of  his  performance  permit  defendant 
to  offset  his  damages  resulting  from  plaintiff's  misconduct.  Newman  v.  Rea- 
gan (1879)  63  Ga.  755;  Newman  v.  Reagan  (1880)  65  Ga.  512;  Hildebrand  v. 
American  Fine  Art  Co.  (1901)  109  Wis.  171,  So  N.  W.  268,  53  L.  R.  A.  826; 
Peacock  v.  Coltrane  (1907)  44  Tex.  Civ.  App.  530,  99  S.  W.  107 ;  Fuqua  v.  Mas- 
sie  (1894)  95  Ky.  387,  25  S.  W.  875. 

But  see  contra,  if  servant's  breach  is  the  result  of  ignorance  or  incompetence 
rather  than  a  willful  default.     Lawrence  v.  Gullifer  (1854)  38  INIe.  532. 

In  Shute  &  Limont  v.  McVitie  (1903,  Tex.  Civ.  App.)  72  S.  W.  433.  where  the 
branch  office,  to  take  charge  of  which  defendant  employed  plaintiff,  was 
conducted  at  a  loss,  it  was  held  that  the  measure  of  recovery  by  plaintiff, 
who  was  discharged  for  cause,  was  the  value  of  his  services,  less  defendant's 
damages  occasioned  by  plaintiff's  breach,  and  not  the  actual  benefit  accruing 
to  defendant  from  such  services,  and  thus  the  fact  that  no  money  was  earned 
by  nlaintift's  employers  by  his  labor  was  inuuaterial.  Compare  Hedges  v. 
Slaiighter  (1910,  Tex.  Civ.  App.)  130  S.  W.  592;  Fabian  v.  Wasatch  Orchard 
Co.,  page  331,  supra. 

18  The  statement  of  facts  contained  in  the  opinion  is  abridged  and  portions 
of  the  opinion  proper  are  omitted. 


Sec.  4)  REPUDIATION  OR  SUBSTANTIAL  BREACH  409 

formance  of  all  services.  *  *  *  In  consideration  of  those  things 
defendant  bound  itself  to  pay  plaintiff  $3,000  a  year  as  follows :  One 
hundred  dollars  on  the  first  and  sixteenth  days  of  each  month  during 
the  existence  of  the  contract,  and  $600  on  the  second  days  of  January, 
1906  and  1907. 

Plaintiff  worked  under  the  contract  without  serious  dispute  with 
defendant  or  its  other  employes  until  September  1,  1906,  and  was  paid 
for  his  services  to  that  date.  He  had  been  somewhat  rough  in  his 
speech  to  the  employes  in  the  bottling  department,  but  no  open  rupture 
between  plaintiff  and  any  of  them  occurred  until  about  September  13th. 
On  said  day  he  observed  in  said  department  a  few  bottles  which  had 
been  washed  but  not  thoroughly  cleansed,  as  he  thought,  and  spoke 
about  their  condition  to  an  employe  named  Kimmick,  who  was  called 
the  "first  man"  in  the  department,  at  the  same  time  applying  an  of- 
fensive epithet  to  Kimmick.  The  latter  said  it  was  impossible  to  wash 
the  bottles  clean  and  make  18  barrels  of  beer  a  day;  meaning  the 
brewing  was  pushed  beyond  the  capacity  of  the  men.  A  few  words 
passed  and  plaintiff  told  Kimmick  to  go  to  the  office  and  get  his  time ; 
in  fact,  paid  him  and  laid  him  off  from  work.  This  was  early  in  the 
forenoon,  and  at  the  time  William  H.  Coerver,  the  president  and  gen- 
eral manager  of  the  brewery,  was  attending  to  business  elsewhere  in 
the  city.  The  employes  of  the  building  belonged  to  a  trade  union,  and 
at  noon  they  notified  the  general  manager  they  would  all  quit  work  if 
Kimmick  was  discharged.  It  should  be  stated  plaintiff  had  power  to 
suspend  any  employe,  but  the  final  decision  as  to  whether  the  suspen- 
sion should  stand  or  not  rested  with  Coerver.     *     *     * 

Coerver  reinstated  Kimmick,  and  refused  to  let  plaintiff  hire  a  new 
first  man  for  the  bottling  department.  After  these  occurrences  plain- 
tiff refused  to  enter  said  department  of  the  brewery  or  to  act  as  super- 
intendent of  the  men  there,  though  he  says  he  was  willing  to  do  so  if 
Kimmick  would  come  to  him  and  agree  to  obey  his  orders.  *  *  * 
On  Saturday,  September  15th,  Coerver  got  the  board  of  directors  to- 
gether and  an  attempt  was  then  made  to  bring  about  a  settlement; 
but  the  men  persisted  in  saying  they  would  quit  work  if  Kimmick  was 
not  allowed  to  remain,  and  plaintiff  refused  to  have  anything  to  do 
with  the  bottling  department  unless  Kimmick  was  dismissed.  Finally 
the  directors  treated  plaintiff's  conduct  as  a  refusal  to  perform  part 
of  his  contract  of  service,  and  on  Monday,  September  17th,  when  he 
returned  to  the  brewery,  Coerver  offered  him  a  check  for  $525,  tell- 
ing him  the  directors  had  decided  to  ask  for  his  resignation.  Plaintiff 
refused  to  resign  or  take  the  check  and  Coerver  told  him  if  he  would 
not  accept  the  check  he  would  get  nothing.     *     *     ♦ 

This  action  was  instituted  to  recover  $1,400  alleged  to  be  due  under 
the  contract;  that  is  to  say,  $100  every  two  weeks  from  September 
1st  to  January  1st,  and  $600  which  would  fall  due  January  2d.  The 
petition  states  the  terms  of  the  contract,  and  alleges  plaintiff  complied 
with  it  in  every  particular,  but  defendant  failed  to  comply,  by  dis- 


410  BENEFITS   UNDER   CONTRACT   PARTIALLY   PERFORMED  (Cll.  3 

charging  him,  demanding  he  leave  the  premises  and  not  return.  The 
answer  admits  the  execution  of  the  contract,  denies  plaintiff  complied 
with  its  provisions,  that  he  served  defendant  faithfully,  that  he  was 
discharged,  was  ready  and  willing  to  continue  his  work,  or  offered  to 
do  so.  A  counterclaim  was  also  preferred,  based  on  plaintiff^s  refusal 
to  perform  his  duties.  ^  *  *  \  verdict  was  returned  for  plaintiff 
for  $1,4CX)  without  a  finding  on  the  counterclaim  and  defendant  ap- 
pealed. 

Plaintiff's  own  version  of  the  events  leading  up  to  the  cessation  of 
his  services  shows  he  refused  to  perform  an  essential  part  of  his  con- 
tract obligation.  He  was  employed  to  act  as  superintendent  of  the 
bottling  department,  as  well  as  brewmaster.  *  *  *  The  refusal 
of  plaintiff  to  resume  his  place  and  duties  as  superintendent  of  the 
bottling  department  on  the  repeated  requests  of  Coerver  clearly  breach- 
ed the  contract. 

It  is  insisted  this  breach  was  not  of  so  serious  a  nature  as  to  justify 
plaintiff's  dismissal ;  but  we  think  it  was.  Plaintiff  had  obligated  him- 
self to  superintend  the  bottling,  and  this  was  as  substantial  a  part  of 
his  employment  as  was  his  undertaking  to  act  as  brewmaster.  It  went 
to  the  entire  consideration  to  be  paid  for  his  services,  and  was  meant 
by  both  parties  to  be  an  essential  part  of  the  agreement.  Hence  it 
cannot  be  treated  as  an  independent  covenant,  for  breach  of  which  de- 
fendant might  seek  damages,  but  could  not  terminate  the  employment. 
Ritchie  v.  Atkinson,  10  East,  306;  Lake  Shore,  etc.,  R.  R.  v.  Richards, 
152  111.  59,  38  N.  E.  773,  30  L.  R.  A.  33,  and  notes;  Springfield  Seed 
Co.  v.  Walt,  94  Mo.  App.  76,  67  S.  W.  938.  It  is  a  plain  instance  of 
a  dependent  and  indivisible  covenant  by  any  criterion  laid  down  in 
the  books.  Disobedience  of  orders  by  a  servant,  and  failure  to  per- 
form the  work  for  which  he  was  employed,  is  good  ground  for  his 
dismissal.  Cramer  v.  Mack,  8  Mo.  App.  531;  McCain  v.  Desnoyers, 
64  Mo.  App.  66;  Jordan  v.  Moulding  Co.,  77  Mo.  App.  572;  Wood, 
Master  &  Servant,  §  119;  26  Cyc.  990,  993.  Plaintiff's  conduct  was 
perverse  and  unreasonable,  and  deprived  the  company  of  one  of  the 
main  services  it  had  engaged  him  to  render.  Hence  we  hold  he  was 
justly  dismissed,  and  is  not  entitled  to  his  salary  for  tlie  period  subse- 
quent to  the  dismissal. 

The  question  of  difficulty  arises  on  his  right  to  recover  for  the  time 
he  had  served  which  had  not  been  paid  for  up  to  the  date  of  the  dis- 
charge. The  contract  was  for  services  to  be  rendered  during  the 
period  of  two  years,  and  was,  in  this  respect,  an  entirety.  The  rule 
of  law  controlling  the  right  of  a  party  to  recover  for  what  he  has 
done  under  a  contract  entire  in  its  nature,  and  not  fully  performed, 
is  infected  with  technicalities,  discord,  and  injustice.  The  courts  have 
long  deplored  this  fact  and,  in  some  jurisdictions,  have  struggled  clear 
of  technical  rules  and  established  the  doctrine  that  when  a  servant  is 
discharged  for  misconduct  he  can  recover  the  value  of  services  rendered 
prior  to  the  discharge,  not  exceeding  the  contract  price,  and  diminished 
by  what  the  master  has  lost  from  his  wrongdoing.     Wood,  Master  & 


Sec.  4)  REPUDIATION   OR   SUBSTANTIAL   BREACH  411 

Servant,  §  129;  26  Cyc.  1045,  and  cases  cited  in  note  48.  In  Missouri, 
if  one  contracts  to  erect  a  house  and  does  not  finish  the  job,  but  pro- 
ceeds far  enough  toward  performance  to  benefit  the  owner,  the  con- 
tractor may  recover,  quantum  meruit,  the  value  of  his  work  (Yeats  v, 
Ballentine,  56  Mo.  530) ;  but  building  contracts  are  treated  as  excep- 
tions to  the  general  rule. 

Hardships  must  arise  from  applying,  in  a  Procrustean  way,  the  doc- 
trine that  no  recovery  can  be  had  without  full  performance,  to  cases 
of  continuous  service  wherein  a  partial  performance  suffices  to  confer 
a  substantial  benefit  on  the  promisee,  as  well  as  to  cases  in  which  no 
benefit  can  be  conferred  without  complete  performance.  If  a  man  hired 
by  a  farmer  for  the  year  remains  at  work  long  enough  to  put  in  a  crop 
for  the  employer,  and  then  quits,  his  equity  to  be  paid  for  his  work  rests 
on  firmer  ground  than  does,  say,  the  claim  of  an  artist  who  engages 
to  paint  a  portrait,  and  throws  up  the  task  when  it  is  half  finished.  A 
stem  rule  has  been  enforced  by  the  courts  of  this  state  in  cases  like 
the  present  from  the  first  decision  on  the  question,  and  employes  who 
were  discharged  for  cause,  or  abandoned  work  before  the  end  of  their 
term  of  employment,  have  been  denied  recovery  either  for  the  period 
during  which  they  had  served,  or  for  the  remainder  of  the  term.  Posey 
v.  Garth,  7  Mo.  94,  Z7  Am.  Dec.  183 ;  Caldwell  v.  Dickson,  17  Mo. 
575;  Schnerr  v.  Lemp,  19  Mo.  40;  Henson  v.  Hampton,  32  Mo.  408; 
Lambert  v.  Hartshorne,  65  Mo.  549;  Earp  v.  Tyler,  73  Mo.  617.  Of 
those  cases  Posey  v.  Garth  is  exactly  in  point,  as  the  facts  were  that 
Posey,  who  was  hired  for  a  year  by  Garth  at  an  annual  wage,  was  dis- 
charged for  misconduct  before  tlie  year  ended,  and  was  paid  nothing 
for  his  work,  which  had  continued  several  months.  He  sued  on  the 
contract,  and  was  refused  redress  in  an  opinion  which  declared  the 
law  as  it  ha.s  been  followed  ever  since ;  namely,  if  a  person  enters  serv- 
ice for  a  year  for  a  stipulated  wage,  performance  of  the  whole  con- 
tract is  a  condition  precedent  to  payment  and  the  servant  cannot  re- 
cover if  he  does  not  serve  throughout  the  year.  If  he  is  discharged 
without  sufficient  cause  before  the  year  expires,  he  is  entitled  to  wage^i 
for  the  whole  year;  but  if  there  is  any  fault  or  misconduct  toward  his 
employer  sufficient  to  warrant  his  dismissal,  and,  in  consequence,  he 
is  dismissed,  he  is  not  entitled  to  any  wages. 

This  doctrine  is  maintained  on  the  ground  that  to  permit  a  recovery 
by  a  servant  who  is  discharged  for  good  cause,  or  abandons  his  job 
without  cause,  will  encourage  breaches  of  contracts.  This  reasoning 
is  good  in  instances  where  the  servant  wantonly  abandons  his  contract, 
but  may  be  pushed  so  far  as  to  become  unjust.  Various  events  be- 
yond the  servant's  control,  such  as  sickness  in  his  family,  or  a  mis- 
understanding in  which  he  was  technically  wrong  but  free  from  moral 
turpitude,  may  cause  him  to  fall  short  of  complete  performance.  The 
frequent  inequity  of  permitting  an  employer  to  retain  the  benefit  of 
work  done  by  a  servant  while  the  latter  goes  unrewarded  has  caused 
courts  which  accept  the  doctrine  prevailing  in  this  state  to  allow  an 
exception  when  the  contract  of  hiring,  though  for  a  definite  period 


412  BENEFITS   UNDER   CONTRACT   PARTIALLY   PERFORMED  (Ch.  3 

and  a  round  sum,  provides  for  payment  of  the  compensation  in  periodi- 
cal installments.  In  such  cases,  the  rule  in  some  jurisdictions  is  that  a 
servant  who  abandons  his  contract  or  is  discharged  for  misconduct  is 
entitled  to  be  paid  any  installment  of  salary  or  wages  which  has  ac- 
crued when  his  employment  ceases.^"  Such  installments  of  salary  may 
be  recovered  as  they  fall  due,  by  separate  assumpsits,  and,  therefore, 
a  technical  reason,  if  no  other,  underlies  the  exception.  See  note  to 
Cutter  V.  Powell,  2  Smith's  Lead.  Cas.  (8th  Ed.)  42;  Walsh  v.  N.  Y. 
&  Ky.  Co.,  88  App.  Div.  477,  85  N.  Y.  Supp.  83 ;  Seaburn  v.  Zach- 
mann,  99  App.  Div.  218,  90  N.  Y.  Supp.  1005 ;  Beach  v.  Mullin,  34 
N.  J.  Law,  343 ;  Chamblee  v.  Baker,  95  N.  C.  98 ;  Hartman  v.  Rogers, 
69  Cal.  643,  11  Pac.  581;  Taylor  v.  Laird,  1  H.  &  N.  266;  Smith, 
Master  &  Servant,  113;  26  Cyc.  1043,  and  cases  cited  in  note  34. 
Adopting  it  as  just  and  sound  in  principle,  we  hold  plaintiff,  tliough 
discharged  for  cause,  was  entitled  to  recover  any  salary  due  and  unpaid 
at  the  date  of  the  discharge. 

Counsel  for  defendant  argue  no  salary  was  due  plaintiff  when  he 
was  dismissed,  as  he  had  been  paid  the  installment  which  matured  Sep- 
tember 1,  1906.  Another  installment  of  $100  fell  due  September  16th; 
but  the  argument  against  plaintiff's  right  to  recover  it  is  that  he  was 
discharged  on  September  14th,  two  days  before.  We  think  the  evi- 
dence is  the  other  way.  The  dispute  between  plaintiff  and  Kimmick 
culminated  on  September  14th,  and  the  request  for  plaintiff's  resigna- 
tion, which  was  the  act  of  dismissal,  was  not  made  by  the  directors  un- 
til Saturday  the  15th,  and  he  remained  employed  until  said  date.  He 
was  not  definitely  advised  of  his  dismissal  until  Monday  the  17th, 
when  Coerver  notified  him  of  the  action  of  the  board  and  tendered  him 
a  check  for  $525.  Hence  plaintiff  was  entitled  to  recover  at  least  $100 
salary. 

The  more  diflficult  point  is  his  right  to  a  proportionate  part  of  the 
$600  which  fell  due  January  2,  1907.  *  *  *  Beyond  doubt  tlie  in- 
stallment of  January  2d  was  not  due  when  plaintiff  was  discharged, 
and  hence  does  not  fall  within  the  exception.  But  defendant  accom- 
panied the  discharge  with  a  tender  of  payment  to  plaintiff  of  a  pro- 
portionate part  of  the  January  installment.  This  offer  was  not  made 
by  way  of  compromise,  but  in  settlement  of  what  defendant  conceded 
plaintiff  was  entitled  to  receive.     *     *     * 

Perhaps  it  would  be  consistent  with  the  principles  of  the  law  of 

i»  "These  cases  fTipton  v.  Feltner  (1859)  20  N.  Y.  423,  and  Smith  v.  Brady 
(1858)  17  N.  Y.  185,  72  Am.  Dee.  442]  seem  to  indicate  the  law  of  this  state 
to  be  that,  where  the  parties  expressly  asrree  that  service  for  the  entire  term 
of  contract  shall  be  rendered  as  a  condition  precedent  to  the  payment  of  any 
part  of  the  wages,  the  entire  contract  must  be  performed  in  order  to  enable 
the  servant  to  recover  the  wac:es  earned ;  but  where  the  agreement  is  for 
payment  from  time  to  time  during  the  term,  recovery  can  be  had  for  the  wages 
earned  though  the  servant  abandons  the  service  before  the  expiration  of  the 
term  without  cause.  In  this  event  it  cannot  be  said  full  compliance  with  the 
contract  is  a  condition  precedent  to  the  payment  of  the  part  of  the  wages 
earned."    Mernagh  v.  Nichols  (1909)  132  App.  Div.  509,  118  N.  Y.  Supp.  59. 


Sec.  4)  REPUDIATION   OR  SUBSTANTIAL  BREACH  413 

waiver  to  hold  defendant  had  waived  what,  under  its  view  of  the  con- 
tract, was  but  a  technical  defense — the  nonmaturity  of  the  installment 
when  plaintiff  was  dismissed.  *  *  *  jj^  view  of  the  conceded  fact 
that  plaintiff's  services  were  satisfactory  until  his  quarrel  with  Kim- 
mick,  and  of  defendant's  offer  of  payment,  we  hold  he  was  entitled  to 
such  part  of  the  January  installment  as  he  had  earned.     *     *     * 

We  hold  plaintiff  was  entitled,  on  his  own  evidence,  to  recover  no 
more  than  $525.  The  judgment  will  be  modified  by  allowing  him  tliat 
sum,  and,  as  thus  modified,  will  be  affirmed.    All  concur.^* 


BRITTON  V.  TURNER. 

(Superior  Court  of  Judicature  of  New  Hampsliire,  1S34.     6  N.  H.  481,  26 

Am.  Dee.  713.) 

Assumpsit  for  work  and  labour,  performed  by  the  plaintiff,  in  the 
service  of  the  defendant,  from  March  9th,  1831,  to  December  27,  1831. 

The  declaration  contained  the  common  counts,  and  among  them  a 
count  in  quantum  meruit,  for  the  labor,  averring  it  to  be  worth  one 
hundred  dollars. 

At  the  trial  in  the  C.  C.  Pleas,  the  plaintiff  proved  the  performance 
of  the  labor  as  set  forth  in  the  declaration. 

The  defence  was  that  it  was  performed  under  a  special  contract — 
that  the  plaintiff  agreed  to  work  one  year,  from  some  time  in  March, 
1831,  to  March,  1832,  and  that  the  defendant  was  to  pay  him  for  said 
year's  labor  the  sum  of  one  hundred  and  twenty  dollars ;  and  tlie  de- 
fendant offered  evidence  tending  to  show  that  such  was  the  contract 
under  which  the  work  was  done. 

Evidence  was  also  offered  to  show  that  the  plaintiff  left  the  defend- 
ant's service  without  his  consent,  and  it  was  contended  by  the  defend- 
ant that  the  plaintiff  had  no  good  cause  for  not  continuing  in  his  em- 
ployment. 

There  was  no  evidence  offered  of  any  damage  arising  from  the  plain- 
tiffs departure,  farther  than  was  to  be  inferred  from  his  non  fulfilment 
of  the  entire  contract. 

The  court  instructed  the  jury,  that  if  they  were  satisfied  from  the 
evidence  that  the  labor  was  performed,  under  a  contract  to  labor  a 

20  The  same  rule  as  to  apportionment  is  frequently  applied  where  the  serv- 
ant has  willfully  abandoned  his  contract.  Davis  v.  Treston  (1844)  G  Ala,  8.S ; 
Chamblee  v.  Baker  (ISSO)  05  N.  C.  98 ;  Parker  v.  Brown  &  Bigelow  (1912)  173 
111.  App.  48;  Seaburn  v.  Zachu)ann  (1904)  99  App.  Div.  218,  90  N.  Y,  Supp. 
1005 ;  Taylor  v.  Laird  (1856)  1  H.  &  N.  200.  Compare  Booth  v.  Tyson  (1843) 
15  Vt.  515. 

The  authorities  are  collected  In  26  Cyc.  1043. 

Where  the  doctrine  of  Britton  v.  Turner,  page  413,  prevails,  a  plaintiff  who 
Is  discharged  for  cause  has  the  same  right  to  recover  compensation  as  one 
who  willfully  abandons  his  employment.  See  Carroll  v.  Welch  (ISGl)  20  Tex. 
150. 


414  BENEFITS   UNDER   CONTRACT   TAKTIALLY   PERFORMED  (Ch.  3 

year,  for  the  sum  of  one  hundred  and  twenty  dollars,  and  if  they  were 
satisfied  that  the  plaintiff  labored  only  the  time  specified  in  the  declara- 
tion, and  then  left  the  defendant's  service,  against  his  consent,  and 
without  any  good  cause,  yet  the  plaintiff  was  entitled  to  recover,  un- 
der his  quantum  meruit  count,  as  much  as  the  labor  he  performed 
was  reasonably  worth,  and  under  this  direction  the  jury  gave  a  verdict 
for  the  plaintiff  for  the  sum  of  $95. 

The  defendant  excepted  to  the  instructions  thus  given  to  the  jury. 

Parker,  J.  It  may  be  assumed  that  the  labor  performed  by  tlie 
plaintiff,  and  for  which  he  seeks  to  recover  a  compensation  in  this 
action,  was  commenced  under  a  special  contract  to  labor  for  the  de- 
fendant the  term  of  one  year,  for  the  sum  of  one  hundred  and 
twenty  dollars,  and  that  the  plaintiff  has  labored  but  a  portion  of  that 
time,  and  has  voluntarily  failed  to  complete  the  entire  contract. 

It  is  clear,  then,  that  he  is  not  entitled  to  recover  upon  the  contract 
itself,  because  the  service,  which  was  to  entitle  him  to  the  sum  agreed 
upon,  has  never  been  performed. 

But  the  question  arises,  can  the  plaintiff,  under  these  circumstances. 
recover  a  reasonable  sum  for  the  service  he  has  actually  performed, 
under  the  count  in  quantum  meruit?  Upon  this  and  questions  of  a 
similar  nature,  the  decisions  to  be  found  in  the  books  are  not  easily 
reconciled. 

It  has  been  held,  upon  contracts  of  this  kind  for  labor  to  be  per- 
formed at  a  specified  price,  that  the  party  who  voluntarily  fails  to  ful- 
fill the  contract  by  performing  the  whole  labor  contracted  for,  is  not 
entitled  to  recover  any  thing  for  the  labor  actually  performed,  how- 
ever much  he  may  have  done  towards  the  performance,  and  this  has 
been  considered  the  settled  rule  of  law  upon  this  subject.  Stark  v. 
Parker,  2  Pick.  (Mass.)  267,  13  Am.  Dec.  425;  Faxon  v.  Mansfield, 
2  Mass.  147;  McMillan  v.  Vanderlip,  12  Johns.  (N.  Y.)  165,  7  Am. 
Dec.  299;  Jennings  v.  Camp,  13  Johns.  (N.  Y.)  94,  7  Am.  Dec.  367; 
Reab  v.  Moor,  19  Johns.  (N.  Y.)  ZZ7 ;  Lantry  v.  Parks,  8  Cow.  (N.  Y.) 
63;  Sinclair  v.  Bowles,  9  Barn.  &  C.  92;  Spain  v.  xArnott,  2  Starkie, 
256. 

That  such  a  rule  in  its  operation  may  be  very  unequal,  not  to  say 
unjust,  is  apparent. 

A  party  who  contracts  to  perform  certain  specified  labor,  and  who 
breaks  his  contract  in  the  first  instance,  without  any  attempt  to  per- 
form it,  can  only  be  made  liable  to  pay  the  damages  which  the  other 
party  has  sustained  by  reason  of  such  non  performance,  which  in  many 
instances  may  be  trifling;  whereas  a  party  who  in  good  faith  has 
entered  upon  the  performance  of  his  contract,  and  nearly  completed 
it,  and  then  abandoned  the  further  performance, — although  the  other 
party  has  had  the  full  benefit  of  all  that  has  been  done,  and  has  per- 
haps sustained  no  actual  damage, — is  in  fact  subjected  to  a  loss  of 
all  which  has  been  performed,  in  the  nature  of  damages  for  the  non 
fulfillment  of  the  remainder,  upon  the  technical  rule,  that  the  contract 


Sec.  4)  REPUDIATION  'OR  SUBSTANTIAL  BREACH  415 

must  be  fully  performed  in  order  to  a  recovery  of  any  part  of  the 
compensation. 

By  the  operation  of  this  rule,  then,  the  party  who  attempts  per- 
formance may  be  placed  in  a  much  worse  situation  than  he  who  wholly 
disregards  his  contract,  and  the  other  party  may  receive  much  more, 
by  the  breach  of  the  contract,  than  the  injury  which  he  has  sustained 
by  such  breach,  and  more  than  he  could  be  entitled  to  were  he  seeking 
to  recover  damages  by  an  action. 

The  case  before  us  presents  an  illustration.  Had  the  plaintiff  in 
this  case  never  entered  upon  the  performance  of  his  contract,  the 
damage  could  not  probably  have  been  greater  than  some  small  expense 
and  trouble  incurred  in  procuring  another  to  do  the  labor  which  he 
had  contracted  to  perform.  But  having  entered  upon  the  perform- 
ance, and  labored  nine  and  a  half  months,  the  value  of  which  labor 
to  the  defendant  as  found  by  the  jury  is  $95,  if  the  defendant  can  suc- 
ceed in  this  defence,  he  in  fact  receives  nearly  five  sixths  of  the  value 
of  a  whole  year's  labor,  by  reason  of  the  breach  of  contract  by  the 
plaintiff,  a  sum  not  only  utterly  disproportionate  to  any  probable,  not 
to  say  possible  damage  which  could  have  resulted  from  the  neglect 
of  the  plaintiff  to  continue  the  remaining  two  and  a  half  months,  but 
altogether  beyond  any  damage  which  could  have  been  recovered  by 
the  defendant,  had  the  plaintiff  done  nothing  towards  the  fulfilment 
of  his  contract. 

Another  illustration  is  furnished  in  Lantry  v.  Parks,  8  Cow.  (N.  Y.) 
83.  There  the  defendant  hired  the  plaintiff  for  a  year,  at  ten  dollars 
per  month.  The  plaintiff  worked  ten  and  a  half  months,  and  then  left 
saying  he  would  work  no  more  for  him.  This  was  on  Saturday.  On 
Monday  the  plaintiff  returned  and  offered  to  resume  his  work,  but 
the  defendant  said  he  would  employ  him  no  longer.  The  court  held 
that  the  refusal  of  the  defendant  on  Saturday  was  a  violation  of  his 
contract,  and  that  he  could  recover  nothing  for  the  labor  performed. 

There  are  other  cases,  however,  in  which  principles  have  been  adopt- 
ed leading  to  a  different  result.  It  is  said,  that  where  a  party  contracts 
to  perform  certain  work,  and  to  furnish  materials,  as,  for  instance,  to 
build  a  house,  and  the  work  is  done,  but  with  some  variations  from  the 
mode  prescribed  by  the  contract,  yet  if  the  other  party  has  the  benefit 
of  the  labor  and  materials  he  should  be  bound  to  pay  so  much  as  they 
are  reasonably  worth.  2  Starkie,  Ev.  97,  98;  Hay  ward  v.  Leonard, 
7  Pick.  (Mass.)  181,  19  Am.  Dec.  268;  Smith  v.  First  Cong.  Meeting 
House  in  Lowell,  8  Pick.  (Mass.)  178;  Jewell  v,  Schroeppel,  4  Cow. 
(N.  Y.)  564;  Hayden  v.  Inhabitants  of  Madison,  7  Greenl.  (Me.)  78; 
Bull.  N.  P.  139;  4  Bos.  &  P.  355;  Linningdale  v.  Livingston,  10 
Johns.  (N.  Y.)  36;  Jennings  v.  Camp,  13  Johns.  97,  7  Am.  Dec.  367; 
7  East.  479. 

A  different  doctrine  seems  to  have  been  holdcn  in  Ellis  v.  Hamlen, 
3  Taunt.  52,  and  it  is  apparent,  in  such  cases,  that  if  the  house  has 


416  BENEFITS   UNDER   CONTRACT   PARTIALLY   PEHFORMED  (Cll.  3 

not  been  built  in  the  manner  specified  in  the  contract,  the  work  has  not 
been  done.  The  party  has  no  more  performed  what  he  contracted  to 
perform,  than  he  who  has  contracted  to  labor  for  a  certain  period,  and 
failed  to  complete  the  time. 

It  is  in  truth  virtually  conceded  in  such  cases  that  the  work  has  not 
been  done,  for  if  it  had  been,  the  party  performing  it  would  be  entitled 
to  recover  upon  the  contract  itself,  which  it  is  held  he  cannot  do. 

Those  cases  are  not  to  be  distinguished,  in  principle,  from  the  pres- 
ent, unless  it  be  in  the  circumstance  that  where  the  party  has  contracted 
to  furnish  materials,  and  do  certain  labor,  as  to  build  a  house  in  a  spec- 
ified manner,  if  it  is  not  done  according  to  the  contract,  the  party 
for  whom  it  is  built  may  refuse  to  receive  it, — elect  to  take  no  benefit 
from  what  has  been  performed;  and  therefore  if  he  does  receive, 
he  shall  be  bound  to  pay  the  value,  whereas  in  a  contract  for  labor, 
merely,  from  day  to  day,  the  party  is  continually  receiving  the  benefit 
of  the  contract  under  an  expectation,  that  it  will  be  fulfilled,  and  can- 
not, upon  the  breach  of  it,  have  an  election  to  refuse  to  receive  what 
has  been  done,  and  thus  discharge  himself  from  payment. 

But  we  think  this  diflFerence  in  the  nature  of  the  contracts  does  not 
justify  the  application  of  a  different  rule  in  relation  to  them.  The  par- 
ty who  contracts  for  labor  merely,  for  a  certain  period,  does  so  with 
full  knowledge  that  he  must,  from  the  nature  of  the  case,  be  accepting 
part  performance  from  day  to  day,  if  the  other  party  commences  the 
performance,  and  with  knowledge  also  that  the  other  may  eventually 
fail  of  completing  the  entire  term. 

If  under  such  circumstances  he  actually  receives  a  benefit  from  the 
labor  performed,  over  and  above  the  damage  occasioned  by  the  failure 
to  complete,  there  is  as  much  reason  why  he  should  pay  the  reasonable 
worth  of  what  has  thus  been  done  for  his  benefit,  as  there  is  when 
he  enters  and  occupies  the  house  which  has  been  built  for  him,  but  not 
according  to  the  stipulations  of  the  contract,  and  which  he  perhaps 
enters,  not  because  he  is  satisfied  with  what  has  been  done,  but  be- 
cause circumstances  compel  him  to  accept  it  such  as  it  is,  that  he  should 
pay  for  the  value  of  the  house. 

Where  goods  are  sold  upon  a  special  contract  as  to  their  nature, 
quality,  and  price,  and  have  been  used  before  their  inferiority  has  been 
discovered,  or  other  circumstances  have  occurred  which  have  rendered 
it  impracticable  or  inconvenient  for  the  vendee  to  rescind  the  contract 
in  toto,  it  seems  to  have  been  the  practice  formerly  to  allow  the  ven- 
dor to  recover  the  stipulated  price,  and  the  vendee  recovered  by  a 
cross  action  damages  for  the  breach  of  the  contract.  "But  according 
to  the  later  and  more  convenient  practice,  the  vendee  in  such  case  is 
allowed,  in  an  action  for  the  price,  to  give  evidence  of  tlie  inferiority 
of  the  goods  in  reduction  of  damages,  and  the  plaintiff  who  has  broken 
his  contract  is  not  entitled  to  recover  more  than  the  value  of  the  bene- 
fits which  the  defendant  has  actually  derived  from  the  goods ;  and  where 


Sec.  4)  REPUDIATION   OR   SUBSTANTIAL   BREACH  417 

the  latter  has  derived  no  benefit,  the  plaintiff  cannot  recover  at  all." 
2  Starkie,  Ev.  640,  642 ;   Okell  v.  Smith,  1  Starkie,  107. 

So,  where  a  person  contracts  for  the  purchase  of  a  quantity  of  mer- 
chandise, at  a  certain  price,  and  receives  a  delivery  of  part  only,  and 
he  keeps  that  part,  without  any  offer  of  a  return,  it  has  been  held  that 
he  must  pay  the  value  of  it.  Shipton  v.  Casson,  5  Barn.  &  C.  378; 
Com.  Dig.  tit.  "Action"  (F) ;  Barker  v.  Sutton,  1  Camp.  55,  note.  A 
different  opinion  seems  to  have  been  entertained,  Waddington  v.  Ol- 
iver, 2  Bos.  &  P.  (N.  R.)  61 ;  and  a  different  decision  was  had.  Walker 
V.  Dixon,  2  Starkie,  281. 

There  is  a  close  analogy  between  all  these  classes  of  cases,  in  which 
such  diverse  decisions  have  been  made.  If  the  party  who  has  contract- 
ed to  receive  merchandise,  takes  a  part  and  uses  it,  in  expectation  that 
the  whole  will  be  delivered,  which  is  never  done,  there  seems  to  be 
no  greater  reason  that  he  should  pay  for  what  he  has  received,  than 
there  is  that  the  party  who  has  received  labor,  in  part  under  similar 
circumstances,  should  pay  the  value  of  what  has  been  done  for  his 
benefit. 

It  is  said,  that  in  those  cases  where  the  plaintiff  has  been  permitted 
to  recover  there  was  an  acceptance  of  what  had  been  done.  The  an- 
swer is,  that  where  the  contract  is  to  labor  from  day  to  day,  for  a 
certain  period  as  it  is  performed,  and  although  the  other  may  not 
eventually  do  all  he  has  contracted  to  do,  there  has  been,  necessarily, 
an  acceptance  of  what  has  been  done  in  pursuance  of  the  contract, 
and  the  party  must  have  understood  when  he  made  the  contract  that 
there  was  to  be  such  acceptance. 

If  then  the  party  stipulates  in  the  outset  to  receive  part  perform- 
ance from  time  to  time,  with  a  knowledge  that  the  whole  may  not 
be  completed,  we  see  no  reason  why  he  should  not  equally  be  holden 
to  pay  for  the  amount  of  value  received,  as  where  he  afterwards  takes 
the  benefit  of  what  has  been  done,  with  a  knowledge  that  the  whole 
which  was  contracted  for  has  not  been  performed.  In  neitlier  case 
has  the  contract  been  performed.  In  neither  can  an  action  be  sustained 
on  the  original  contract.  In  both  the  party  has  assented  to  receive 
what  is  done.  The  only  difference  is,  that  in  the  one  case  the  assent 
is  prior,  with  a  knowledge  that  all  may  not  be  performed,  in  the  other 
it  is  subsequent,  with  a  knowledge  that  the  whole  has  not  been  ac- 
complished. 

We  have  no  hesitation  in  holding  that  the  same  rule  should  be 
applied  to  both  classes  of  cases,  especially,  as  the  operation  of  the  rule 
will  be  to  make  the  party  who  has  failed  to  fulfill  his  contract,  liable 
to  such  amount  of  damages  as  the  other  party  has  sustained,  instead 
of  subjecting  him  to  an  entire  loss  for  a  partial  failure,  and  thus 
making  the  amount  received  in  many  cases  wholly  disproportionate  to 
the  injury.    1  Saund.  320c  ;  2  Starkie,  Ev.  643. 

It  is  as  "hard  upon  the  plaintiff  to  preclude  him  from  recovering  at 
Thubs.Quasi  Cont. — li7 


418      BENEFITS  UNDER  CONTRACT  PARTIALLY  PERFORMED    (Ch.  3 

all,  because  he  has  failed  as  to  part  of  his  entire  undertaking,"  where 
his  contract  is  to  labor  for  a  certain  period,  as  it  can  be  in  any  other 
description  of  contract,  provided  the  defendant  has  received  a  benefit 
and  value  from  the  labor  actually  perfonned. 

We  hold  then,  that  where  a  party  undertakes  to  pay  upon  a  special 
contract  for  the  performance  of  labor,  or  the  furnishing  of  materials, 
he  is  not  to  be  charged  upon  such  special  agreement  until  the  money 
is  earned  according  to  the  terms  of  it;  and  where  the  parties  havt. 
made  an  express  contract  the  law  will  not  imply  and  raise  a  contract 
different  from  that  which  the  parties  have  entered  into,  except  upon 
some  farther  transaction  between  the  parties. 

In  case  of  a  failure  to  perform  such  special  contract,  by  the  default 
of  the  party  contracting  to  do  the  service,  if  the  money  is  not  due 
by  the  terms  of  the  special  agreement  he  is  not  entitled  to  •  recover 
for  his  labor,  or  for  the  materials  furnished,  unless  the  other  party 
receives  what  has  been  done,  or  furnished,  and  upon  the  whole  case 
derives  a  benefit  from  it.  Taft  v.  Inhabitants  of  Montague,  14  Mass. 
282,  7  Am.  Dec.  215  ;  2  Starkie,  Ev.  644. 

But  if,  where  a  contract  is  made  of  such  a  character,  a  party  actually 
receives  labor  or  materials,  and  thereby  derives  a  benefit  and  advan- 
tage, over  and  above  the  damage  which  has  resulted  from  the  breach  of 
the  contract  by  the  other  party,  the  labor  actually  done,  an'd  the  value 
received,  furnish  a  new  consideration,  and  the  law  thereupon  raises 
a  promise  to  pay  to  the  extent  of  the  reasonable  worth  of  such  ex- 
cess. This  may  be  considered  as  making  a  new  case,  one  not  within 
the  original  agreement,  and  the  party  is  entitled  to  "recover  on  his 
new  case,  for  the  work  done,  not  as  agreed,  but  yet  accepted  by  the  de- 
fendant."    1  Dane,  Abr.  224. 

If  on  such  failure  to  perform  the  whole,  the  nature  of  the  contract 
be  such  that  the  employer  can  reject  what  has  been  done,  and  refuse 
to  receive  any  benefit  from  the  part  performance,  he  is  entitled  so 
to  do,  and  in  such  case  is  not  liable  to  be  charged,  unless  he  has  before 
assented  to  and  accepted  of  what  has  been  done,  however  much  the 
other  party  may  have  done  towards  the  performance.  He  has  in  such 
case  received  nothing,  and  having  contracted  to  receive  nothing  but  the 
entire  matter  contracted  for,  he  is  not  bound  to  pay,  because  his  ex- 
press promise  was  only  to  pay  on  receiving  the  whole,  and  having  ac- 
tually received  nothing  the  law  cannot  and  ought  not  to  raise  an  im- 
plied promise  to  pay.  But  where  the  party  receives  value,  takes  and 
uses  the  materials,  or  has  advantage  from  the  labor,  he  is  liable  to  pay 
the  reasonable  worth  of  what  he  has  received.  Farnsworth  v.  Gar- 
rard, 1  Camp.  38.  And  the  rule  is  the  same  whether  it  was  received 
and  accepted  by  the  assent  of  the  party  prior  to  the  breach,  under  a 
contract  by  which,  from  its  nature,  he  was  to  receive  labor,  from  time 
to  time  until  the  completion  of  the  whole  contract.;  or  whether  it  was 
received  and  accepted  by  an  assent  subsequent  to  the  performance  of 


Sec.  4)  REPUDIATION  OR  SUBSTANTIAL  BREACH  419 

all  which  was  in  fact  done.  If  he  received  it  under  such  circumstances 
as  precluded  him  from  rejecting  it  afterwards,  that  does  not  alter 
the  case ;  it  has  still  been  received  by  his  assent. 

In  fact,  we  think  the  technical  reasoning,  that  the  performance 
of  the  whole  labor  is  a  condition  precedent,  and  the  right  to  recover 
anything  dependent  upon  it ;  that,  the  contract  being  entire,  there  can 
be  no  apportionment;  and  that,  there  being  an  express  contract,  no 
other  can  be  implied,  even  upon  the  subsequent  performance  of  serv- 
ice,— is  not  properly  applicable  to  this  species  of  contract,  where  a 
beneficial  service  has  been  actually  performed ;  for  we  have  abundant 
reason  to  believe,  that  the  general  understanding  of  the  community  is, 
that  the  hired  laborer  shall  be  entitled  to  compensation  for  the  serv- 
ice actually  performed,  though  he  do  not  continue  the  entire  term  con- 
tracted for,  and  such  contracts  must  be  presumed  to  be  made  with 
reference  to  that  understanding,  unless  an  express  stipulation  shows 
the  contrary. 

Where  a  beneficial  service  has  been  performed  and  received,  there- 
fore, under  contracts  of  this  kind,  the  mutual  agreements  cannot  be 
considered  as  going  to  the  whole  of  the  consideration,  so  as  to  make 
them  mutual  conditions  the  one  precedent  to  the  other,  without  a 
specific  proviso  to  that  effect.  Boone  v.  Eyre,  1  H.  Bl.  273,  note; 
Campbell  v.  Jones,  6  Term  R.  570;  Ritchie  v.  Atkinson,  10  East,  295; 
Burn  V.  Miller,.  4  Taunt.  745.    . 

It  is  easy,  if  parties  so  choose,  to  provide  by  an  express  agreement 
that  nothing  shall  be  earned,  if  the  laborer  leaves  his  employer  with- 
out having  performed  the  whole  service  contemplated,  and  then  there 
can  be  no  pretence  for  a  recovery  if  he  voluntarily  deserts  the  service 
before  the  expiration  of  the  time. 

The  amount,  however,  for  which  the  employer  ought  to  be  charged, 
where  the  laborer  abandons  his  contract,  is  only  the  reasonable  worth 
or  the  amount  of  advantage  he  receives  upon  the  whole  transaction 
(Wadleigh  v.  Sutton,  6  N.  H.  15,  23  Am.  Dec.  704) ;  and,  in  estimating 
the  value  of  the  labor,  the  contract  price  for  the  service  cannot  be 
exceeded  (Hayden  v.  Inhabitants  of  Madison,  7  Greenl.  [Me.]  78;  Du- 
bois v.  Canal  Co.,  4  Wend.  [N.  Y.]  285;  Koon  v.  Greenman,  7  Wend. 
[N.  Y.]   121). 

If  a  person  makes  a  contract  fairly  he  is  entitled  to  have  it  fully  per- 
formed; and  if  this  is  not  done  he  is  entitled  to  damages.  He  may 
maintain  a  suit  to  recover  the  amount  of  damage  sustained  by  the  non- 
performance. 

The  benefit  and  advantage  which  the  party  takes  by  the  labor,  there- 
fore, is  the  amount  of  value  which  he  receives,  if  any,  after  deduct- 
ing the  amount  of  damage ;  and  if  he  elects  to  put  this  in  defence  he  is 
entitled  so  to  do,  and  the  implied  promise  which  the  law  will  raise,  in 
such  case,  is  to  pay  such  amount  of  the  stipulated  price  for  the  whole 
labor,  as  remains  after  deducting  what  it  would  cost  to  procure  a  com- 


420  BENEFITS   UNDER   CONTRACT   PARTIALLY   PERFORMED  (Cll.  3 

pletion  of  the  residue  of  the  service,  and  also  any  damage  which  has 
been  sustained  by  reason  of  the  non-fulfilment  of  the  contract. 

If  in  such  case  it  be  found  that  the  damages  are  equal  to  or  greater 
than  the  amount  of  the  labor  performed,  so  that  the  employer,  having 
a  right  to  the  full  performance  of  the  contract  has  not  upon  the  whole 
case  received  a  beneficial  service,  the  plaintiff  cannot  recover. 

This  rule,  by  binding  the  employer  to  pay  the  value  of  the  service 
he  actually  receives,  and  the  laborer  to  answer  in  damages  where  he 
does  not  complete  the  entire  contract,  will  leave  no  temptation  to  the 
former  to  drive  the  laborer  from  his  service,  near  the  close  of  his  term, 
by  ill  treatment,  in  order  to  escape  from  payment;  nor  to  the  latter 
to  desert  his  service  before  the  stipulated  time,  without  a  sufficient  rea- 
son ;  and  it  will  in  most  instances  settle  the  whole  controversy  in  one 
action,  and  prevent  a  multiplicity  of  suits  and  cross  actions. 

There  jnay  be  instances,  however,  where  the  damage  occasioned  is 
much  greater  than  the  value  of  the  labor  performed,  and  if  the  party 
elects  to  permit  himself  to  be  charged  for  the  value  of  the  labor,  with- 
out interposing  the  damages  in  defence,  he  is  entitled  to  do  so,  and 
may  have  an  action  to  recover  his  damages  for  the  non-performance, 
whatever  tliey  may  be.  Crowninshield  v,  Robinson,  1  Mason,  93,  Fed. 
Cas.  No.  3,451. 

And  he  may  commence  such  action  at  any  time  after  the  contract 
is  broken,  notwitlistanding  no  suit  has  been  instituted  against  him ; 
but  if  he  elects  to  have  the  damages  considered  in  the  action  against 
him,  he  must  be  understood  as  conceding  that  they  are  not  to  be  ex- 
tended beyond  the  amount  of  what  he  has  received,  and  he  cannot 
afterwards  sustain  an  action  for  farther  damages. 

Applying  the  principles  thus  laid  down,  to  this  case,  the  plaintiff 
is  entitled  to  judgment  on  the  verdict. 

The  defendant  sets  up  a  mere  breach  of  the  contract  in  defence  of 
the  action,  but  this  cannot  avail  him.  He  does  not  appear  to  have 
offered  evidence  to  show  that  he  was  damnified  by  such  breach,  or 
to  have  asked  that  a  deduction  should  be  made  upon  that  account. 
The  direction  to  the  jury  was  therefore  correct;  that  the  plaintiff 
was  entitled  to  recover  as  much  as  the  labor  performed  was  reason- 
ably worth,  and  the  jury  appeared  to  have  allowed  a  pro  rata  compen- 
sation, for  the  time  which  tlie  plaintiff  labored  in  the  defendant's  serv- 
ice. 

As  the  defendant  has  not  claimed  or  had  any  adjustment  of  damages, 
for  the  breach  of  the  contract,  in  this  action,  if  he  has  actually  sus- 
tained damage  he  is  still  entitled  to  a  suit  to  recover  the  amount. 

Whether  it  is  not  necessary,  in  cases  of  this  kind,  that  notice  should 
be  given  to  the  employer  that  the  contract  is  abandoned,  with  an 
offer  of  adjustment  and  demand  of  payment;  and  whether  the  laborer 
must  not  wait  until  the  time  when  the  money  would  have  been  due 
according  to  the  contract,  before  commencing  an  action  (2  Bos.  &  P. 


Sec.  4)  REPUDIATION   OR   SUBSTANTIAL   BREACH  421 

[N.  R.]   61),  are  questions  not  necessary  to  be  settled  in  this  case, 
no  objections  of  that  nature  having  been  taken  here. 
Judgment  on  the  verdict.*^ 


MILLER  V.  GODDARD. 
(Supreme  Judicial  Court  of  Maine,  1852.    34  Me.  102,  56  Am,  Dec.  638.) 

Assumpsit,  for  labor  performed. 

■  The  plaintiff  worked  for  the  defendant  in  the  woods,  three  or  four 
months.  Both  parties  admitted,  that  the  labor  was  performed  under  a 
contract  for  a  longer  term  at  an  agreed  price  per  month.  The  plain- 
tiff insisted,  that  the  defendant  discharged  him  without  cause.  On 
the  other  side  it  was  insisted  that  the  plaintiff  voluntarily  quit,  without 
fault  or  consent  of  the  defendant.  Upon  these  questions,  evidence 
was  introduced. 

The  Judge  instructed  the  jury  that,  if  "the  plaintiff  agreed  to  work 
during  the  lumbering  season,  and  left  before  that  time  was  out, 
without  the  fault  or  consent  of  the  defendant,  he  could  still  recover 
his  wages  for  the  time  he  did  perform,  deducting  therefrom  the  dam- 
ages, if  any,  which  such  leaving  caused  to  defendant,  (unless  the 
damage  thus  caused  to  defendant,  was  equal  to,  or  exceeded  the 
amount  of  plaintiff's  wages  due  at  the  time  when  he  left,  in  which  case 

21  Accord:  Pitts'  Adm'r  v.  Pitts  (1863)  21  Ind.  309;  Pixler  v.  Nichols  (1859) 
8  Iowa,  106,  74  Am.  Dec.  208 ;  Duncan  v.  Baker  (1878)  21  Kan.  99 ;  Parcell  v. 
McComber  (1881)  11  Neb.  209,  7  N.  W.  529,  38  Am.  Rep.  366;  Lynn  v.  Seby 
(1915)  29  N.  D.  420,  151  N.  W.  31,  page  426,,  infra ;  Limerick  v.  Lee  (1906)  17 
Okl.  165,  87  Pac.  859;  Bedow  v.  Tomkin  (1894)  5  S.  D.  4-32,  59  N.  W.  222;  Car- 
roll V.  Welch  (1861)  26  Tex.  147.  See,  also,  Williams  v.  Crane  (1908)  153  Mich. 
89.  116  N.  W.  554.  In  Timberlalce  v.  Thayer  (1893)  71  Miss.  279,  14  South, 
446,  24  L.  R.  A.  231,  the  court  expressed  regret  that  the  precedents  prevented 
its  adopting  the  rule  of  Britton  v.  Turner. 

In  Kentucky  it  seems  that  a  recovery  is  allowed  at  the  contract  rate.  West- 
em  V.  Sharp  (1853)  14  B.  Mon.  (53  Kj'.)  177 ;  Asher  v.  Tomlinson  (1901,  Ky.)  60 
S.  W.  714.  But  see  Buckwalter  v.  Bradley  (1907)  31  Ky.  Law  Rep.  1177,  104 
S.  W.  970. 

In  Limerick  v.  Lee,  supra,  the  court  said :  "The  leading  case  with  refer- 
ence to  contracts  for  personal  services  sustaining  recovery  on  'quantum  meruit' 
is  Britton  v.  Turner,  6  N.  H.  481,  26  Am.  Dec.  713,  and  the  doctrine 
there  laid  down  is  better  adapted  to  do  adequate  justice  to  both  parties  and 
wrong  to  neither  than  those  numerous  cases  which  rest  upon  the  somewhat 
technical  rules  of  the  entirety  of  contract.  In  McClay  v.  Hedge  (1864)  18 
Iowa,  66,  Judge  Dillon,  speaking  for  the  court,  said :  'Referring  to  the  doctrine 
laid  down  in  Britton  v.  Turner,  6  N.  H.  481,  26  Am.  Dec.  713,  •  *  •  its 
principles  have  been  gradually  winning  their  way  into  professional  and  judicial 
favor.  It  is  bottomed  on  justice,  and  is  right  upon  principle,  however  it  may 
be  upon  the  technical  and  more  illiberal  rules  of  the  common  law  as  fouud 
in  the  older  cases.'  In  Duncan  v.  Baker,  21  Kan.  99,  it  was  held,  'where 
a  contract  is  entire  and  has  been  only  partially  fulfilled,  the  party  in  iault 
may  nevertheless  recover  from  the  other  party  for  the  actual  benefit  received 
and  retained  by  the  other  party  less  the  damages  sustained  by  the  other  par- 
ty by  reason  of  the  partial  nonfulfillment  of  the  contract ;  and  this  may  be 
done  in  all  eases  where  the  other  party  has  received  benefit  from  the  partial 
fulttlLment  of  the  contract  whether  he  has  so  received  the  same  and  retained 
it  from  choice  or  from  the  necessities  of  the  case.' " 


422  BENEFITS   UNDER   CONTRACT   PARTIALLY   PERFORMED  (Ch.  3 

plaintiff  could  recover  nothing,  and  their  verdict  would  be  for  defend- 
ant.) 

The  verdict  was  for  the  plaintiff,  and  the  defendant  excepted. 

Wells,  J.^^  This  was  an  action  for  work  performed  under  a  spe- 
cial tontract,  in  which,  it  was  alleged,  the  plaintiff  was  to  labor  dur- 
ing the  season  of  lumbering,  at  an  agreed  price  per  month. 

The  Judge  of  the  District  Court  instructed  the  jury  in  substance, 
that  if  the  plaintiff  left  the  employment  of  the  defendant  before  the 
contract  was  performed  without  the  fault  or  consent  of  the  defendant, 
still  the  plaintiff  could  recover  his  wages  for  the  time  he  labored,  de- 
ducting the  damages,  which  the  defendant  sustained  by  a  want  of  en- 
tire performance  of  the  contract,  and  if  they  were  equal  to  the  wages 
or  exceeded  them  then  the  plaintiff  could  not  recover  anything. 

It  is  a  rule  of  the  common  law,  that  where  an  entire  service  is  to  be 
performed,  for  an  entire  compensation  to  be  paid  at  its  completion, 
the  performance  of  the  service  is  a  condition  precedent  to  the  recovery 
of  the  compensation.  The  language  of  such  contract  indicates  clearly, 
that  it  is  not  intended  by  the  parties  that  the  stipulated  price  should 
be  paid  until  the  service  is  performed.  And  it  is  manifest,  that  the 
rule  is  founded  in  the  familiar  principle,  that  contracts  should  be 
expounded  and  executed  according  to  the  true  and'  just  intent  of  the 
parties.  Cutter  v.  Powell,  6  T.  R.  320;  Spain  v.  Arnott,  2  Stark.  R. 
227.  "Unless  there  be  some  express  stipulation  to  the  contrary,  when- 
ever a  specific  sum  is  to  be  paid  for  specific  work,  the  performance 
or  service  is  a  condition  precedent ;  there  being  one  condition  and  one 
debt,  they  cannot  be  divided."    3  Stark.  Ev.  1303. 

In  the  case  of  Stark  v.  Parker,  2  Pick.  (Mass.)  267,  13  Am.  Dec. 
425,  which  was  an  action  for  services  rendered,  it  was  held,  that  the 
plaintiff  must  perform  the  agreed  service  as  a  condition  precedent  to 
his  right  to  recover  anything  under  the  contract  and  that  he  could  not 
renounce  the  contract  and  recover  on  a  quantum  meruit.  The  same 
principle  is  confirmed  in  Olmstead  v.  Beale,  19  Pick.  (Mass.)  528.  And 
the  law  is  held  to  be  the  same  in  Lantry  v.  Parks,  8  Cow.  (N.  Y.)  63. 

In  New  Hampshire,  it  has  been  thought  more  equitable  that  in  such 
cases,  the  laborer,  who  has  departed  from  his  contract,  should  recov- 
er what  his  services  were  reasonably  worth.  Britton  v.  Turner,  6  N. 
H.  481,  26  Am.  Dec.  713.  When  the  laborer  has  adequate  cause  to 
justify  an  omission  to  fulfil  the  contract,  he  cannot  be  regarded  as  in 
any  fault.  But  it  does  not  very  well  accord  with  the  good  faith,  which 
the  rules  of  law  uniformly  require  to  allow  him  to  stop  at  any  stage  of 
his  labor,  in  open  violation  of  his  agreement,  and  still  compel  his  em- 
ployer to  pay  him  what  his  services  are  worth.  If  it  were  permit- 
ted to  the  laborer  to  determine  the  contract  at  his  pleasure,  no  well 
founded  reliance  could  be  placed,  at  any  time,  upon  a  due  observance 
of  it 

»2  A  portion  of  the  opinion  is  omitted. 


Sec.  4)  REPUDIATION   OR   SUBSTANTIAL   BREACH  423 

It  is  contended  that  this  case  falls  within  that  class  where  work  and 
labor  and  materials  are  furnished  in  the  performance  of  contracts,  like 
those  of  Hayden  v.  Madison,  7  Greenl,  79,  Abbot  v.  Hermon,  7  Greenl. 
118,  and  Norris  v.  School  District  in  Windsor,  12  Me.  293,  28  Am. 
Dec.  182,  and  there  is  not  a  complete  and  full  performance  in  all  re- 
spects. But  it  will  be  found  in  those  cases,  that  there  was  a  waiver 
of  a  strict  compliance  or  an  acceptance  of  what  was  done,  or  that  the 
work  was  done  and  the  materials  furnished,  but  not  in  the  manner 
specified  in  the  contract  and  without  any  intentional  variation  from 
it.    Knowlton  v.  Inhabitants  of  Plantation  No.  4,  14  Me.  20. 

The  present  case  is  not  one  of  an  imperfect  performance,  as  it 
would  be  if  the  plaintiff  had  labored  during  the  time,  but  had  perform- 
ed his  labor  in  a  negligent  and  unskillful  manner;  but  an  absolute 
want  of  performance,  for  a  portion  of  the  time  employed,  is  the  ground 
upon  which  the  instruction  was  based.     *     ♦     ♦ 

The  exceptions  are  sustained. 


JOHNSON  V.  FEHSEFELDT. 

(Supreme  Court  of  Minnesota,  1908.     106  Minn.  202,  118  N.  W.  797,  20  L.  R.  A. 

[N.  S.]  1069.) 

Appeal  from  District  Court,  Grant  County ;  S.  A.  Flaherty,  Judge. 

Action  by  Harold  Johnson  and  others  against  John  Fehsefeldt. 
Verdict  for  plaintiffs.  From  an  order  denying  a  motion  for  a  new 
trial,  defendant  appeals. 

Jaggard,  J.  Plaintiffs  and  respondents,  owners  of  a  threshing 
outfit,  entered  into  a  verbal  agreement  with  defendant  and  appellant 
to  thresh  defendant's  grain,  for  which  defendant  agreed  to  pay  the 
sum  of  10  cents  a  bushel  for  wheat,  6  cents  a  bushel  for  oats,  and  15 
cents  for  flax.  Plaintiffs  contend  that  this  case  involved  an  agreement 
to  thresh  grain  at  so  much  per  bushel ;  defendant,  that  it  was  to 
thresh  all  of  his  crop  of  grain.  Upon  the  record,  we  are  of  the  opin- 
ion that  the  question  was  one  of  fact.  Pursuant  to  the  agreement 
the  plaintiffs  threshed  a  portion  of  the  crop.  Before  the  entire  crop 
had  been  threshed,  plaintiff's  hauled  their  threshing  machine  away  from 
defendant's  premises  and  refused  to  thresh  more  for  the  reason  that 
they  were  losing  money.  There  was  testimony  tending  to  show  that 
there  were  some  300  acres  of  grain  left  in  shock,  which  plaintiffs 
neglected  and  refused  to  thresh.  Defendant  then  completed  the  thresh- 
ing of  his  grain,  through  other  parties.  Subsequently  plaintiffs  filed 
threshers'  liens.  The  court  directed  a  verdict  in  eft'ect  for  the  plain- 
tiffs for  the  work  and  threshing  they  had  done  at  the  agreed  price 
per  bushel.  A  motion  for  a  new  trial  was  denied,  provided  the  plain- 
tiffs stipulated  for  a  reduction  of  the  verdict.  The  stipulation  was 
filed.  The  court  thereupon  denied  the  motion  for  a  new  trial,  from 
which  appellant  appealed. 


424  BENEFITS   UNDER   CONTRACT   PARTIALLY    PERFORMED  (Ch.  3 

For  present  purposes,  and  for  them  only,  it  must  and  will  be  as- 
sumed, upon  a  construction  most  favorable  to  the  defeated  party,  that 
plaintiffs  agreed  to  thresh  all  of  defendant's  crop.  The  essential  ques- 
tion is  whether  the  contract  was  entire  and  indivisible,  in  the  sense  that 
plaintiffs  could  not  recover  upon  a  quantum  meruit  or  ispon  the  con- 
tract to  the  extent  to  which  it  had  been  performed.  On  principle  we 
are  of  opinion  that  plaintiffs  could  not  recover.  When  they  found 
that  they  were  operating  at  a  loss,  they  had  the  option  to  complete 
the  contract,  recover  the  contract  price,  and  submit  to  the  loss,  or 
to  abandon  the  contract,  lose  the  work  they  had  done,  and  be  subject 
to  whatever  damages  might  be  recoverable  for  the  breach  of  the  con- 
tract. The  fact  that  plaintiffs  had  rendered  services,  tlie  value  of 
which  defendant  retained,  did  not  entitle  plaintiffs  to  recover  on  quan- 
tum meruit  because  of  the  contract  and  of  the  inability  of  defendants 
to  return  the  services.  "As  said  in  Galvin  v.  Prentice,  45  »N.  Y.  162, 
6  Am.  Rep.  58:  'When  the  contract  is  entire,  and  one  party  is  willing 
to  complete  the  performance  and  is  not  in  default,  no  promise  can  be 
implied  on  his  part  to  compensate  the  other  party  for  a  part  perform- 
ance.' Certainly  it  must  be  so  where  the  failure  to  fully  perform  is 
due  wholly  to  the  fault  of  such  other  party."  Kriger  v.  Leppel,  42 
Minn.  6,  43  N.  W.  484.  And  see  Nelichka  v.  Esterly,  29  Minn.  146,  12 
N.  W.  457;   Kohn  v.  Fandel,  29  Minn.  470,  13  N.  W.  904. 

It  would  be  obviously  inconsistent  with  common  justice  that  plain- 
tiffs should  recover  pro  tanto  on  the  contract  which  they  had  sub- 
stantially violated.  They  were  in  the  wrong.  They  were  not  in  a  po- 
sition to  say  to  defendant:  "We  will  perform  the  contract  we  have 
agreed  to  if  it  prove  profitable.  If  we  find  it  unprofitable,  we  will  aban- 
don it."  That  would  be  to  contradict  the  contract.  Such  reasoning  is 
forbidden  by  its  terms.  Defendant  did  not  agree  in  advance  to  a 
breach  of  the  contract  and  to  accept  in  lieu  of  performance  the  require- 
ment that  he  pay  plaintiffs  for  what  they  had  done  under  the  contract 
and  for  tlie  balance  to  accept  the  right  to  try  damages  before  a  jury. 
Such  speculation  on  the  part  of  the  plaintiff's  it  would  be  unreasonable 
to  permit.  It  is  well  settled  in  this  state  that  the  failure  to  perform  an 
entire  contract  ordinarily  defeats  the  right  to  recover  on  the  contract. 
Atwater  J.,  said  in  Mason  v.  Hey  ward,  3  Minn.  182  (Gil.  116,  122): 
"Where  a  party  willfully,  or  without  cause,  refuses  to  complete  a  con- 
tract which  he  has  made,  and  upon  the  execution  of  which  he  has 
entered,  courts  should  never  interfere  to  protect  him  from  the  conse- 
quences of  his  own  wrong."  It  is  true  that  where,  as  in  building  con- 
tracts, there  is  a  substantial  performance,  the  court  will  not  permit 
the  owner  of  the  land  to  retain  the  fruits  of  the  labor  and  refuse  to 
pay  for  it.  Leeds  v.  Little,  42  Minn.  414,  44  N.  W.  309.  It  is  equally 
clear,  however,  that  where  there  has  been  an  intentional  failure  to 
complete  the  contract,  or  a  departure  so  substantial  as  to  be  incapable 
of  a  remedy,  there  can  be  no  partial  recovery.    Elliott  v.  Caldwell,  43 


Sec.  4)  REPUDIATION   OR   SUBSTANTIAL   BREACH  425 

Minn.  357,  45  N.  W.  845,  9  L.  R.  A.  52  ;*   Hodund  v.  Sortedahl,  101 
Minn.  359,  112  N.  W.  408. 

This  view  accords  with  prevailing  authority.  "A  partial  perform- 
ance may  be  a  defense  pro  tanto,  or  it  may  sustain  an  action  pro  tanto  ; 
but  this  can  be  only  in  cases  where  the  duty  to  be  done  consists  of 
parts  which  are  distinct  and  severable  in  their  own  nature,  and  are 
not  bound  together  by  expressions  giving  entirety  to  the  contract.  It 
is  not  enough  that  the  duty  to  be  done  is  in  itself  severable,  if  the  con- 
tract contemplated  it  only  as  a  whole."  Parsons,  Cont.  *658,  *659. 
"The  mere  fact  that  *  *  *  the  value  is  ascertained  by  the  price 
affixed  to  each  pound,  or  yard,  or  bushel  of  the  quantity  contracted 
for  will  not  be  sufficient  to  render  the  contract  severable."  Parsons, 
Cont.  *5 17.28 

Reversed,  and  a  new  trial  granted.** 

*This  case  is  summarized  in  a  note,  page  399,  supra. 

23  In  McMillan  v.  Malloy  (1880)  10  Neb.  228,  4  N.  W.  1004,  35  Am.  Rep.  471. 
the  court  held  that  a  thresbine;  contract  similar  to  the  one  in  tbe  principal 
case  was  not  entire,  but  severable.  See.  also,  tbe  cases  cited  in  the  note  to  the 
principal  case  in  20  L.  R.  A.  (N.  S.)  1069. 

24  The  great  weight  of  authority  is  in  accord  with  the  principal  case  and 
Miller  v.  Goddard,  page  421,  supra.  See,  especially,  Sinclair  v.  Bowles  (1829) 
9  B.  &  C.  92 ;  Stark  v.  Parker  (1824)  2  Pick.  (Mass.)  267,  13  Am.  Dec.  425 ; 
Diefenback  v.  Stark  (1883)  56  Wis.  462,  14  N.  W.  621,  43  Am.  Rep.  719 ; 
Hughes  V.  Cannon  (1834)  1  Sneed  (Tenn.)  622. 

Among  the  more  recent  decisions  denying  all  right  of  recovery  to  one  who 
has  conmaitted  a  willful  breach  of  his  contract  of  personal  service,  are  the  fol- 
lowing: Graden  v.  Buford  (1911)  1  Ala.  App.  668,  56  South.  77;  Latham  v. 
Barwick  (1908)  87  Ark.  328,  113  S.  W.  646 ;  Ptacek  v.  Pisa  (1907)  231  111.  522, 
83  N.  E.  221,  14  L.  R.  A.  (N.  S.)  537 ;  Sipley  v.  Stickney  (1906)  190  Mass.  43, 
76  N.  E.  226,  5  L.  R.  A.  (N.  S.)  469,  112  Am,  St.  Rep.  309,  5  Ann.  Cas.  611 ; 
Walden  v.  American  Bankers'  Assurance  Co.  (1914)  183  Mo.  App.  376,  166  S. 
W.  1111 ;  Waite  v.  C.  E.  Shoemaker  &  Co.  (1915)  50  Mont.  264,  146  Pac.  736 ; 
Daly  V.  Jefferson  Hotel  Co.  (1914)  98  S.  C.  222,  82  S.  E.  412. 

In  Waite  v.  Shoemaker,  supra,  the  court  said :  "There  are  exceptions  to  the 
general  rule  that  a  failure  of  full  performance  is  conclusive  of  plaintiff's  right 
to  recover.  These  are  cases  in  which  the  departures  from  the  stipulations  in 
the  contract  are  not  substantial  and  intentional,  and  do  not  affect  the  entire 
result,  and  the  defendant  has  received  benefits  which  it  would  be  unjust  to 
permit  him  to  retain,  without  paying  anything.  This  Is  particularly  true  of 
building  contracts.  In  such  a  case  the  law  implies  a  promise  on  the  part  o' 
the  adverse  party  to  pay  what  the  benefit  is  worth,  and  permits  recovery  for 
it  upon  a  quantum  meruit,  provided  the  defendant  may  recoup  all  damages 
sustained  by  him  by  reason  of  plaintiff's  delinquency.  In  such  cases  the  par- 
ties cannot  rescind  and  stand  in  statu  quo,  and  it  is  but  just  tliat  compensa- 
tion should  be  made  by  the  adverse  party  for  the  actual  benefit  received.  The 
following  cases,  taken  from  among  many  cited  in  plaintiff's  brief,  support  this 
doctrine :  [Citations  omitted.]  We  think  it  is  supported  by  the  great  weight 
of  authority.  As  was  said,  however,  in  Phillip  v.  Gallant,  62  N.  Y.  256: 
'There  must  be  no  willful  or  intentional  departure,  and  the  defects  must  not 
pervade  the  whole,  or  be  so  essential  as  that  the  object  which  the  parties  in- 
tended to  accomplish — to  have  a  specified  amount  of  work  performed  in  a 
particular  manner — is  not  accomplished.'  See,  also.  Woodward  v.  Fuller, 
SO  N.  Y.  312,  and  Sinclair  v.  Talmadge,  35  Barb.  (N.  Y.)  602.  To  permit  a 
plaintiff  to  recover,  though  it  appears  that  he  has  willfully  disregarded  his 
engagement  in  essential  particulars  would  be  for  the  law  to  encourage  par- 
ties to  be  delinquent  in  the  performance  of  their  solemn  engagements;  where- 
as its  policy  is  to  compel  observance  of  them." 

The  authorities  are  di.scussed  at  lenglh  in  65  Central  Law  Journal,  292. 


426  BE^•EFITS   UNDER   CONTRACT   PARTIALLY   PERFORMED  (Cll.  3 

LYNN  V.  SEBY. 

(Supreme  Court  of  North  Dakota,  1915.    29  N.  D.  420,  151  N.  W.  31.) 

Appeal  from  District  Court,  Eddy  County;  Buttz,  Judge. 

Action  by  Arthur  Lynn  against  Iver  Seby.  From  judgment  for 
plaintiff,  defendant  appeals. 

Goss,  J.'^  Plaintiff  has  recovered  judgment  against  defendant  for 
a  small  amount  as  a  balance  of  a  threshing  bill.  Judgment  was  granted 
upon  the  pleadings.  In  brief,  plaintiff  agreed  to  thresh  all  of  defend- 
ant's grain.  He  threshed  the  wheat  and  oats,  but  refused  to  thresh  the 
flax.  Defendant  was  unable  to  procure  threshing  of  his  flax  that  fall, 
and  defends  and  counterclaims  for  the  amount  of  the  resulting  damage 
from  the  flax  remaining  unthreshed  through  the  winter.  The  contract 
for  threshing  was  the  usual  one,  with  no  special  provision  whereby 
plaintiff  agreed  to  be  responsible  in  damages  for  more  than  ordinary 
liability.  Therefore  the  counterclaim  did  not  plead  a  cause  of  action 
for  damages,  under  the  holding  in  Hayes  v.  Cooley,  13  N.  D.  204,  100 
N.  W.  250,  for  the  reason  that  the  loss  of  grain  through  resulting  ex- 
posure to  the  elements  is  a  remote  and  not  a  proximate  consequence  of 
the  breach  of  the  contract  and  will  not  sustain  a  recovery,  the  measure 
of  which  is  defined  by  section  7146,  C.  L.  1913,  merely  declaratory  of 
the  common  law.  It  cannot  be  said  that  such  damages  are  those  "which 
in  the  ordinary  course  of  events  would  be  likely  to  result"  from  the 
breach  of  the  contract  by  plaintiff.  Defendant  concedes  this  to  be  the 
declared  law  of  this  state,  but  avers  that  the  same  should  be  either 
overruled,  or  there  should  be  ingrafted  thereon  the  further  condition 
that  if  defendant  cannot  recover  such  damages  plaintiff  should  not  be 
allowed  to  breach  his  contract  and  also  recover  for  the  part  perform- 
ance by  him.  Or,  in  other  words,  that  the  parties  should  be  left  as  they 
are  found,  and,  if  plaintiff  sees  fit  to  breach  his  contract,  that  he  should 
go  without  pay  for  the  portion  performed  and  for  which  he  would 
have  received  payment  had  h?  fully  performed. 

The  question  is  an  important  one,  and  no  doubt  much  can  be  said 
towards,  and  much  authority  cited  sustaining,  the  contention  of  the 
defendant.  The  rule  at  common  law  was  against  plaintiff's  recovery 
until  the  case  of  Britton  v.  Turner,  6  N.  H.  481,  26  Am.  Dec.  713,  was 
decided  in  1834,  in  disregard  of  precedent.  But  the  reasoning  of  that 
case  is  so  cogent  that  it  seems  to  have  at  least  divided,  if  not  changed, 
the  current  of  authority.  It  first  recognized  the  fact  of  the  benefits  of 
the  part  performance  to  the  party  who  would  keep  such  benefits,  in- 
capable of  being  returned,  and  still  avoid  paying  anything  for  the 
benefits  accrued  where  the  contract  is  not  fully  performed.  It  may  be 
remarked  that,  besides  affecting  parties  similarly  situated  tO  those  be- 
fore us,  this  decision  must  also  be  a  precedent  upon  the  right  of  re- 
covery of  those  in  analogous  positions,  as,  for  instance,  the  farm  la- 

20  A  portion  of  the  opinion,  discussing  a  point  of  pleading,  is  omitted. 


Sec.  4)  REPUDIATION   OR   SUBSTANTIAL   BREACH  427 

borer  who  hires  for  the  summer  and  at  the  end  of  six  months'  labor 
performed  quits  his  employment,  and  similar  cases,  where  the  contract 
is  indivisible.  An  equitable  rule  has  gradually  developed  permitting  a 
recovery  for  the  value  of  the  services  rendered,  irrespective  of  the 
breach,  giving  to  the  other  party  to  the  contract  a  corresponding  right 
of  action  in  damages  separately  or  in  mitigation  of  the  plaintiff's  re- 
covery, so  that  the  rights  of  both  may  be  equitably  adjusted  at  law,  not- 
withstanding the  breach  and  nonperformance  of  the  contract.  Bedow 
V.  Tonkin,  5  S.  D.  432,  59  N.  W.  222;  Ball  v.  Dolan,  21  S.  D.  619,  114 
N.  W.  998,  15  L.  R.  A.  (N.  S.)  272 ;  Stolle  v.  Stuart,  21  S.  D.  643,  114 
N.  W.  1007;  Williams  v.  Crane,  153  Mich.  89,  116  N.  W.  554;  Allen 
V.  McKibbin,  5  Mich.  449;  Bush  v.  Brooks,  70  Mich.  446,  38  N.  W. 
562;  Buckwalter  v.  Bradley,  31  Ky.  Law  Rep.  1177,  104  S.  W.  970; 
Byerlee  v.  Mendel,  39  Iowa,  382 ;  Pixler  v.  Nichols,  8  Iowa,  106,  74 
Am.  Dec.  298;  Hillyard  v.  Crabtree,  11  Tex.  264,  62  Am.  Dec.  475; 
Burkholder  v.  Burkholder,  25  Neb.  270,  41  N.  W.  145;  Duncan  v. 
Baker,  21  Kan.  99 ;  Pitts  v.  Pitts,  21  Ind.  309.  This  is  true  only  where 
that  which  has  been  received  by  the  employer  under  the  partial  per- 
formance has  been  beneficial  to  him.  "The  implication  of  a  promise 
in  all  such  cases  is  derived  from  the  fact  that  the  performance  has 
been  beneficial  to  him."    9  Cyc.  689,  685, 

In  this  case  it  must  be  admitted  that  the  threshing  done  was  of  sub- 
stantial benefit  to  defendant  and  a  partial  performance  of  this  con- 
tract. While  there  is  a  division  of  authority,  and  the  weight  of  au- 
thority, from  the  number  of  holdings  alone  (26  Cyc.  1042),  would  deny 
a  right  of  recovery,  yet  we  prefer  to  follow  the  other  line  of  authority. 
Either  rule  must,  under  certain  circumstances  work  injustice.  Other- 
wise there  would  be  no  division  in  authorities.  We  elect  to  follow 
that  which  we  believe  to  be  the  trend  of  authority.  It  may  be  noted 
that  cases  of  default  under  sales  contracts,  similar  to  Pfeiffer  v.  Nor- 
man, 22  N.  D.  168,  133  N.  W.  97,  38  L.  R.  A.  (N.  S.)  891,  must  not  be 
taken  as  analogous  to  contracts  for  work  and  labor  as  involved  in  the 
instant  case.  The  implications  arising  from  the  reception  of  benefits 
of  part  performance  of  employment  contracts,  where  that  which  is  so 
received  cannot  be  returned,  has  no  analogy  to  sale  transactions  where 
a  portion  of  the  price  is  paid  and  the  party  to  pay  the  balance  sees  fit 
to  default  and  attempts  to  recover  back  what  he  has  paid  in  partial 
performance  and  before  his  default.  Likewise  a  different  equitable 
rule  has  developed  under  building  contracts,  the  rule  of  substantial 
compliance  and  performance,  and  such  authorities  are  not  strictly  ap- 
plicable.    *     *     * 

The  judgment  is  affirmed.^' 

28  Accord,  on  similar  facts:  Riech  v.  Bolch  (1886)  68  Iowa,  526,  27  N.  W.  507. 


428  BENEFITS  WITHOUT   CONTRACT  (Ch.  4 


CHAPTER  IV 

BENEFITS  VOLUNTARILY  CONFERRED  WITHOUT  CON- 
TRACT 


SECTION  1.— PLAINTIFF  ACTED  WITHOUT  EXPECTA- 
TION OF  COMPENSATION 


ST.  JUDE'S  CHURCH  v.  VAN  DENBERG. 

(Supreme  Court  of  Michigan,  1875.     31  Mich.  287.) 

Error  to  Genesee  Circuit. 

Graves,  C.  J.  The  defendant  in  error  sued  on  the. common  counts 
to  recover  a  claim  against  the  church  for  services  and  some  other  mat- 
ters, and  the  case  was  sent  to  a  referee,  who  heard  the  parties  and 
made  a  finding  in  favor  of  defendant  in  error. 

Some  exceptions  were  taken,  but  the  circuit  court  sustained  the  do- 
ings of  the  referee. 

The  plaintiff  in  error  then  removed  the  case  here  by  writ  of  error. 
Several  questions  were  mooted  on  the  argument,  but  only  a  single 
point  of  any  importance  appears  to  have  been  saved  in  any  form  to  be 
reviewed  by  this  court.  The  referee  decided  that  the  defendant  in 
error  had  a  valid  demand  or  cause  of  action  for  six  hundred  and 
thirty-four  dollars  and  thirty-four  cents,  and  judgment  was  entered 
for  this  amount,  together  with  interest  upon  it  from  the  date  of  the 
report.  There  was  included  in  the  sum  so  found  by  the  referee,  the 
amount  of  four  hundred  dollars  allowed  for  Mr.  Van  Denberg's  serv- 
ices as  sexton,  and  the  interest  upon  that  sum  from  the  17th  of  De- 
cember, 1870.  And  the  validity  of  this  allowance  is,  we  tliink,  subject 
to  be  considered  on  this  record.  The  claim  for  services  as  sexton  is 
made  to  rest  entirely  upon  an  implied  agreement. 

All  the  evidence  given  before  the  referee  appears  to  be  returned  in 
the  bill  of  exceptions,  and  the  point  is  taken  that  there  was  none  tending 
to  show  or  maintain  any  implied  promise  of  the  plaintiff  in  error  to  pay 
for  these  services,  and  this  position  appears  to  be  well  founded.  Dur- 
ing the  time  of  service  for  which  he  claims,  he  was  a  vestryman,  and 
part  of  it,  at  least,  senior  warden  and  also  treasurer.  He  also  held 
some  other  places  in  the  society  and  seems  to  have  been  an  active  and 
efficient  member.  He  constantly  took  a  leading  part  in  the  secular  af- 
fairs of  the  church  and  acted  as  men  do  in  such  situations  when  no 
compensation  is  thought  of  on  any  hand,  and  it  appears  very  clear 
upon  the  proof,  that  when  he  served  in  character  of  sexton  he  was  not 


Sec.  1)  ACTING  WITHOUT   EXPECTING  COMPENSATION  429 

acting  for  pay,  and  that  neither  himself  nor  the  church  expected  he 
was  to  be  paid.  The  performance  of  the  duty  was  plainly  voluntary, 
and  it  was  manifestly  supposed  on  both  sides  that  his  service  was 
something  he  was  spontaneously  giving  from  a  desire  to  promote  a 
cause  he  had  at  heart,  and  not  in  any  extent  whatever  to  get  m"oney. 
Now,  it  is  well  settled  that  no  promise  will  be  implied  when  the  impli- 
cation would  be  repugnant  to  an  express  promise,  and  it  is  equally 
plain  that  no  promise  can  be  implied  where  the  circumstances  not  only 
fail  to  indicate  that  the  services  were  rendered  or  received  for  com- 
pensation, but  clearly  repel  the  idea  that  payment  was  to  be  made  or 
asked  for.  And  such  is  the  case  here.  The  relations  of  the  parties,  the 
nature  of  the  service,  and  all  the  pertinent  facts  point  in  one  direction, 
and  they  clearly  establish  that  the  defendant  in  error,  in  acting  as  sex- 
ton, did  not  work  for  money  or  pecuniary  pay,  and  that  the  church,  in 
accepting  the  service,  did  not  understand  that  pay  was  to  be  exacted, 
and  did  not  undertake  to  make  any  pecuniary  return.  The  allowance, 
then,  was  unsupported  by  any  evidence  tending  to  favor  it.  As  this 
item  itself  was  wrong,  it  was  of  course  improper  to  give  interest  upon  it. 
For  this  error  the  judgment  must  be  reversed,  with  the  costs  of  this 
court.  But  as  the  facts  are  before  us  as  found  by  the  referee,  it  is 
competent  to  enter  judgment  in  this  court  for  the  true  amount,  and 
that  we  find  to  be  two  hundred  and  twenty-seven  dollars  and  forty-twc 
cents.  ^ 


ST.  JOSEPH'S  ORPHAN  SOCIETY  v.  WOLPERT. 

(Court  of  Appeals  of  Kentucky,  1882.     80  Ky.  86.) 

Hargis,  J.  The  appellant,  a  charitable  institution  for  the  rearing, 
maintaining,  and  educating  of  orphan  children  brought  this  action 
against  John  Schulten,  as  guardian  of  Frank,  George,  Catherine,  and 
John  Wolpert,  and  against  each  of  said  infants  in  their  individual  c?- 
pacity,  for  the  value  of  raising,  taking  care  of,  and  educating  them. 

The  petition,  stripped  of  its  formal  parts,  substantially  alleges  that 
the  infants  named  were  supposed  by  appellant  and  their  guardian  to 

1  In  Potter  v.  Carpenter  (1879)  76  N.  Y.  157,  to  plaintiffs'  action  on  defend- 
ants' note  and  for  services,  defendants  counterclaimed  for  the  use  by  plain- 
tiffs of  defendants'  barn  and  for  sen'ices  rendered  by  defendants  in  teaming 
for  plaintiff's.  It  appeared  that  neither  party  had  kept  any  account  of  the 
mutual  services  (which  had  gone  on  for  several  years),  and  that  the  parties 
had  recently  settled  an  open  account  for  goods  sold.  The  court  held  tliat,  in 
the  absence  of  proof  of  any  express  agreement  to  pay  for  the  teaming,  such 
an  agreement  could  not  properly  be  implied,  Rapallo,  J.,  saying:  "The  findings 
show  that,  during  all  the  period  covered  by  these  transactions,  these  parties 
were  in  the  habit  of  rendering  juutual  services  to  each  other,  and  that  al- 
though they  had  pecuniary  transactions  to  a  considerable  amount,  these  serv- 
ices were  not  brought,  nor  intended  to  be  brought  into  their  accounts.  Upon 
such  a  state  of  facts  a  promise  to  pay  cannot  be  implied,  and  these  services 
must  be  regarded  as  matters  of  mutual  accommodation,  for  which  neither 
party  intended  to  make  any  charge  against  the  other." 

See  also  Spadoni  v.  Giacomazzi  (1915)  27  Cal.  App.  149,  149  Pac.  51. 


430  BENEFITS   WITHOUT   CONTRACT  (Cll.  4 

be  penniless,  and  tliat  the  appellant  received,  cared  for,  and  educated 
them  as  persons  who  have  no  property  or  means,  and  that  such  persons 
were  so  received  and  cared  for  without  charge  in  the  institution ;  but 
that  the  by-laws  authorized  by  its  charter  provides  that  the  guardian  of 
orphans  who  have  property,  means,  or  estate  might  contract  with  ap- 
pellant's board  of  trustees,  and  agree  upon  the  conditions  of  their 
admission;  and  that  appellant  has  recently  discovered  that  the  infant 
appellees  did  have  some  money,  which  was  received  from  their  moth- 
er's estate,  and  as  a  pension,  by  reason  of  the  military  service  of  their 
father  in  the  United  States  army.f     *     *     * 

After  the  appellant,  under  protest,  elected  to  prosecute  its  action 
against  the  guardian  of  John  Wolpert,  the  latter  demurred,  and  the 
court  sustained  the  demurrer,  and  that  ruling  forms  the  next  question 
to  be  determined. 

It  will  be  noticed  that  the  appellant  does  not  allege  any  promise  or 
agreement  with  the  guardian  or  the  infants,  either  for  board,  care,  or 
education,  and  having,  from  charitable  motives,  taken,  raised,  and  edu- 
cated them  without  intending  to  charge  therefor,  as  it  alleges,  it  cannot, 
by  reason  of  this  express  and  executed  gratuity,  recover  on  an  implied 
assumpsit  raised  by  law,  unless  the  alleged  mistake  in  tlie  condition  of 
these  orphans  will  authorize  a  revocation  of  its  consent,  and  impose 
upon  them  a  liability  for  what  it  voluntarily  did.  It  is  not  alleged  that 
the  guardian  intentionally  or  fraudulently  suppressed  the  knowledge 
from  appellant  of  the  existence  of  the  small  sum  which  they  received 
by  distribution  from  their  mother's  estate  or  of  the  pension ;  and  a  close 
analysis  of  ,the  whole  case  presents  the  question,  whether  a  charitable 
institution,  incorporated  for  the  purpose,  shall  be  permitted  to  receive, 
care  for,  and  educate  orphans,  with  the  express  understanding  that 
nothing  is  to  be  charged  therefor,  and  when  it  is  discovered  that  such 
orphans  have  received  by  the  misfortunes  of  war,  and  the  charity  of 
the  government,  a  pension  for  the  purpose  of  subsistence,  which  is  ex- 
empt from  attachment,  levy,  or  seizure,  revoke  its  gratuity,  and  share 
with  the  beneficiaries  that  charity  which  they  have  received  from  an- 
other source. 

We  do  not  think  it  can  be  allowed  this  privilege  of  recantation,  be- 
cause its  charter  and  by-laws  authorized  it  to  contract  for  compensa- 
tion ;  yet  it  failed  to  arm  itself  with  an  agreement  therefor,  and  no  de- 
ception is  alleged  to  have  been  practiced  to  prevent  tliis  exaction. 

And  it  has  been  held  too  often  to  admit  of  doubt  or  discussion,  that 
an  executed  gift  or  gratuity  cannot  be  revoked  by  the  donor,  no  matter 
what  may  have  been  the  condition  of  the  donee,  or  what  charities  he 
shall  receive,  or  property  acquire  in  the  future,  unless  the  donation  or 
gratuity  were  the  result  of  fraud  or  mistake  in  its  execution. 

And  there  is  no  reason  why  an  executed  gift  of  personal  property 

t  A  portion  of  the  opinion,  upholding  the  ruling  of  the  trial  court  requiring 
the  appellant  to  elect  which  cause  of  action  it  would  prosecute,  is  omitted. 


Sec.  1)  ACTING   WITHOUT   EXPECTING   COMPENSATION  431 

shall  not  be  revoked  that  does  not  sustain  the  irrevocability  of  gratui- 
tous labor,  care,  board,  or  education  after  completion. 

One  is  no  more  the  executed  donation  of  value  than  the  other,  and 
the  same  principle  of  law  is  equally  applicable  to  both. 

The  creation  of  the  appellant  was  for  charitable  and  benevolent 
purposes,  and  the  undertaking  of  its  holy  mission  presupposes  that  its 
labor  of  love  is  to  be  done  without  money  and  without  price,  and  unless 
a  special  agreement,  which  seems  to  have  been  authorized  by  its  charter, 
in  view  of  the  gratuitous  nature  of  the  office  of  this  institution,  were 
made  for  compensation,  we  do  not  think  it  can  recover  for  board,  care, 
and  education  of  orphans  whose  control  it  has  sought  with  the  avowed 
purpose  of  bestowing  charity  upon  them. 

There  was  no  mistake  in  the  execution  of  these  charitable  donations, 
which  do  not  partake  of  the  nature  of  a  contract  to  the  same  degree 
that  ordinary  gifts  do;  but  the  objects  of  this  charity  seem  to  have 
been  less  needy  than  appellant  supposed,  and  this  is  all  we  are  author- 
ized to  infer  from  the  allegations  of  the  petition. 

Under  what  is  known  as  the  hospitality  act,  an  uninvited  guest  can- 
not be  held  liable  on  an  implied  assumpsit,  and  certainly  infants,  who 
are  invited  generally  and  specially  to  a  charitable  institution,  cannot 
be  held  bound  for  the  charity  they  receive  without  an  express  promise 
to  pay,  simply  because  they  happened  to  have  and  receive  property, 
which  was  unknown  to  the  managers  of  the  institution  until  after  the 
performance  of  the  charity. 

Were  this  otherwise,  this  noble  charity  would  be  converted  into  a 
sort  of  house  of  private  entertainment,  to  which  obligations  of  indebt- 
edness might  be  contracted  unawares  by  orphans  and  guardians,  and 
those  who  received  its  assistance  free  would  become  debtors  therefor 
by  the  unexpected  development  of  ownership  hitherto  unknown  to  the 
institution. 

The  demurrer,  in  our  opinion,  was  properly  sustained.  Judgment 
affirmed.^ 

2  Similarly,  by  the  common-law  doctrine,  in  the  absence  of  fraud,  a  supposed 
pauper,  to  whom  poor  relief  has  been  granted,  cannot  be  reqiiired  to  reim- 
burse the  municipality  furnishins;  such  relief  out  of  property  then  owned  ot 
subsequently  acquired  by  him.  Charlestown  v.  Hubbard  (1838)  9  N.  H.  195 : 
City  of  Albany  v.  McNamara  (18S9)  117  N.  Y.  1G8,  22  N.  E.  931.  6  L.  R.  A. 
212;  Chariton  County  v.  Hartman  (19€5)  190  Mo.  71.  88  S.  W.  617.  But  see 
contra :  In  re  Clabbon,  [1904]  2  Ch.  465.  Such  liability  is  sometimes  imposed 
by  statute.  Directors  of  the  Poor  v.  Nyce  (1894)  161  Pa.  82,  128  Atl.  999. 
Board  of  Directors  v.  Smith  (1901)  64  S.  W.  466,  23  Ky.  Law  Rep.  860  (statute 
construed  to  permit  recoverj-  for  future  support  only,  not  for  past  support). 

The  same  doctrine  applies  to  lunatics  to  whom  public  aid  has  been  given  in 
the  belief  that  thev  were  without  property.  Montgomery  County  v.  Gupton 
(1897)  139  Mo.  303,  39  S.  W.  447,  40  S.  W.  1094;  Oneida  County  v.  Bartholo- 
mew (1894)  82  Hun,  80,  31  N.  Y.  Supp.  106  (no  liability  at  conmion  law;  stat- 
utory recovery  limited  to  future  support);  Inhabitants  of  Stow  v.  Sawyer 
(1862)  3  Allen  (Mass.)  515.  Contra:  McNairy  County  v.  McCoin  (1S9S)  101 
Tenn.  74,  45  S.  W.  1070,  41  L.  R.  A.  862. 

In  Shepherd  v.  Young  (1857)  8  Gray  (Mass.)  152,  69  Am.  Dec.  242,  the  plain- 
tiff took  into  her  home  and  supported  her  married  daughter  and  the  latter's 
infant  child,   the  husband   and  father  having  deserted  his   family  without 


432  BENEFITS   WITHOUT   CONTRACT  (Cll.  4 


HOWARD  V.  RANDOLPH. 

(Supreme  Court  of  Georgia,  1910.     134  Ga.  G91,  68  S.  E.  586,  29  L.  R.  A.  [N.  S.] 

294,  20  Ann.  Gas.  392.) 

Error  from  Superior  Court,  Jackson  County;   C.  H.  Brand,  Judge. 

Action  by  M.  M.  Randolph  against  W.  C.  Howard  and  others,  ex- 
ecutors of  J.  E.  Randolph.  Judgment  for  plaintiff,  and  defendants 
bring  error. 

Evans,  P.  J.'  This  is  a  suit  to  recover  upon  a  quantum  meruit 
$3,949  principal,  besides  interest,  for  services  alleged  to  have  been  ren- 
dered to  J.  E.  Randolph,  the  defendants'  testator.  The  greater  part 
of  the  recovery  sought  is  claimed  for  services  alleged  to  have  been 
rendered  during  tlie  plaintiff's  minority.  The  jury  rendered  a  verdict 
in  her  favor  for  $3,240.10  principal  and  $929.50  interest.  The  plain- 
tiff voluntarily  wrote  oft"  from  the  amount  of  interest  recovered  $343.- 
60.    The  court  refused  the  defendants  a  new  trial. 

We  gather  from  the  record  that  J.  E.  Randolph,  who  was  without 
children,  and  whose  household  consisted  of  himself  and  wife,  about  the 
year  1885  took  the  plaintiff,  then  a  child  oi  about  three  years,  from  an 
orphanage,  and  received  her  into  his  household  as  a  member  of  his 
family,  where  she  remained  until  his  death  in  1905.  Though  of  no  kin 
to  her,  he  gave  to  her  his  surname,  maintained  and  educated  her,  and 
in  all  respects  treated  her  as  a  daughter  and  a  member  of  his  house- 
hold. He  was  a  man  in  easy  circumstances,  always  provided  his  house- 
hold with  two  servants,  and  the  plaintiff  was  not  called  upon  to  dis- 
charge any  domestic  services,  except  as  are  usually  rendered  by  a 
daughter  under  like  circumstances.    Her  education  was  not  confined  to 

cause.  After  ten  months  the  infant  was  Ivilled  in  a  railroad  accident,  and 
defendant,  the  infant's  administrator,  received  on  a  settlement  with  the  rail- 
road the  sum  of  $2,500  as  damages  in  account  of  the  infant's  death.  Plaintiff 
then  brought  action  to  recover  for  the  value  of  the  support  furnished  the  in- 
fant. The  court  gave  judgment  for  the  defendant,  saying:  "The  board  of  the 
child  was  clearly  a  gratuity,  furnished  from  motives  of  affection  and  kindness 
by  the  plaintiff,  without  any  expectation  of  remuneration,  or  intent  to  make  a 
claim  in  the  nature  of  a  debt.  There  is  therefore  nothing  on  which  an  implied 
cbntract  can  rest  to  charge  the  assets  of  the  intestate  in  the  hands  of  the  de- 
fendant." 

See,  also.  Osier  v.  Hobbs  (1878)  33  Ark.  215,  Hanrahan  v.  Baxter  (1908) 
(Iowa)  116  N.  W.  595,  16  L.  R.  A.  (N.  S.)  1046. 

In  Eggers  v.  Anderson  (1901)  63  N.  J.  Eq.  264.  49  Atl.  578,  55  L.  R.  A.  570,  it 
was  held  that  charitable  donations  to  the  defendant's  testatrix,  Induced  by 
her  fraudulent  representations  as  to  her  means  of  living,  niight  be  recovered  in 
equity. 

In  Pickslay  v.  Starr  (1896)  149  N.  Y.  432,  44  N.  E.  163,  32  L.  R.  A.  703,  52 
Am.  St.  Rep.  740,  in  accordance  with  his  practice  for  the  last  few  years,  an 
employer  gave  his  employe  a  check  for  a  large  amount  for  a  Christmas  pres- 
ent, acting  in  momentary  forgetfulness  of  the  fact  that  during  the  past  year 
an  arrangement  had  been  made  whereby  the  employe's  salary  had  been  nearly 
doubled.  Some  months  later,  after  the  employe  had  gone  on  a  trip  to  Europe, 
he  was  notified  that  the  gift  was  made  by  mistake  and  its  repayment  demand- 
ed. Held,  that  this  gift  could  not  at  that  late  date  be  avoided  by  the  donor 
on  the  ground  of  mistake. 

8  A  portion  of  the  opinion  is  omitted. 


Sec.  1)  ACTING  WITHOUT   EXPECTING   COMPENSATION  433 

the  elementary  branches  of  a  common-school  education,  but  she  was 
taught  music  and  art,  and  graduated  from  an  institution  of  learning 
about  the  year  1899.  After  her  graduation  in  1899  she  taught  school 
five  months,  and  again  taught  school  in  1901  about  five  montlis.  She 
was  teaching  school  in  1905,  when,  about  the  1st  of  February,  she  was 
summoned  to  the  bedside  of  Mrs.  Randolph,  who  died  about  a  month 
later,  and  about  a  month  thereafter  Mr.  Randolph  died.  Mr.  Randolph 
owned  several  small  tenant  houses  near  a  factory,  some  storehouses, 
and  some  land.  He  also  conducted  an  undertaking  business  in  Jeffer- 
son, a  town  of  1,500  or  1,800  population.  When  the  plaintiff  was  about 
12  or  14  years  of  age,  she  began  to  assist  Mr.  Randolph  in  dressing 
coffins  as  he  would  sell  them,  and  she  assisted  in  collecting  the  rents 
from  the  small  houses,  and  in  keeping  his  accounts  with  respect  to 
these  matters.  To  what  extent  she  assisted  in  the  collection  of  rents, 
and  the  character  of  the  accounts  which  she  and  Mr.  Randolph  kept 
appertaining  to  the  rent  and  undertaking  business,  does  not  appear  with 
much  precision  in  the  record.  Mr.  Randolph  was  accustomed  to  use 
intoxicants,  and  sometimes  got  drunk,  and  the  plaintiff  always  minister- 
ed unto  his  wants  on  these  occasions.  Whenever  Mrs.  Randolph  was 
sick,  she  would  nurse  her.  Mr.  Randolph  left  an  estate  of  about  $60,- 
000,  and  in  his  will  bequeathed  to  the  plaintiff  $1,000  in  cash  and  a 
third  interest  in  the  undertaking  business,  from  which  she  realized 
$450.  The  whole  evidence  tended  to  show  that  the  relations  between 
the  plaintiff  and  Mr.  Randolph  and  his  wife  were  cordial,  and  such  as 
might  be  expected  between  parent  and  child.  No  hint  of  unkind,  dis- 
respectful, or  inconsiderate  treatment  from  one  to  the  other  is  sug- 
gested. 

1,  2.  Until  majority  the  child  remains  under  the  control  of  the  father, 
who  is  entitled  to  its  services  and  the  proceeds  of  its  labor.  Civ.  Code, 
§  2502.  Likewise  one  who  stands  in  loco  parentis  to  such  a  child  is 
entitled  to  the  proceeds  of  its  labor,  and  is  bound  for  its  care,  mainte- 
nance, and  support.  Eaves  v.  Fears,  131  Ga.  820,  64  S.  E.  269.  A  per- 
son who  means  to  put  himself  in  the  situation  of  the  lawful  father  of 
the  child  stands,  with  respect  to  the  father's  office  and  duty  of  making 
provision  for  the  child,  in  loco  parentis  to  the  child.  Brinkerhoff  v. 
Merselis,  24  N.  J.  Law,  683;  Powys  v.  Mansfield,  19  Vesey,  Jr.,  154. 
Sir  William  Grant  said  that. one  sustained  this  relation  "by  assuming 
the  parental  character  and  discharging  parental  duties."  Weatherby  v. 
Dixon,  19  Vesey,  Jr.,  412.  Where  a  person  voluntarily  assumes  the 
relation  of  a  parent  to  a  child,  whom  he  is  under  no  obligation  to  sup- 
port, and  faithfully  discharges  the  duties  of  that  relation  by  receiving 
such  child  into  his  family  and  educating  and  supporting  him  on  the 
same  footing  as  if  the  child  were  his  own,  in  the  absence  of  an  express 
agreement  the  child  cannot  maintain  an  action  against  such  person  for 
services  rendered  while  a  minor,  although  the  value  of  such  services 
may  exceed  the  expenses  of  such  education  and  support.  Under  such 
TnuRS. Quasi  Cont. — 28 


434  BENEFITS   WITHOUT   CONTRACT  (Cll.  4 

circumstances  a  promise  to  pay  wages  will  not  be  implied.  Williams  v. 
Hutchinson,  3  N.  Y.  312,  53  Am.  Dec.  301 ;  Tyler  v.  Burrington,  39 
Wis.  376.  As  was  said  in  Schrimpf  v.  Settegast,  36  Tex.  296:  "The 
weight  of  authority  has  established  a  doctrine  that  would  hold  a  person 
who  had,  through  motives  of  kindness  or  charity,  received  an  orphan 
child  into  his  family,  whether  it  be  a  stepchild  or  an  entire  stranger, 
and  treated  it  as  a  member  of  his  family,  as  standing  in  loco  parentis, 
so  long  as  such  child  should  see  fit  to  remain  in  such  family,  or  so  long 
as  it  should  be  permitted  thus  to  remain ;  and  while  that  relation  should 
exist,  the  party  who  stood  in  loco  parentis  would  be  bound  for  the 
maintenance,  care,  and  education  of  such  child,  and  would  b.e  entitled 
to  his  reasonable  services,  without  being  liable  to  pay  for  the  same, 
only  in  the  way  of  support,  unless  there  had  been  an  express  promise 
to  that  effect." 

The  record  is  silent  as  to  whether  the  plaintiff,  at  the  time  she  was 
received  into  the  family  of  the  defendant's  testator,  had  fatlier  or 
mother  or  any  one  else  to  whom  she  could  look  for  support  and  main- 
tenance. As  she  was  taken  from  an  orphanage  at  such  a  tender  age, 
we  may  indulge  the  inference  that  she  was  an  orphan.  Her  introduc- 
tion into  the  family  of  Mr.  Randolph  was  as  a  member  of  his  house- 
hold. Indeed,  the  plaintiff  only  begins  to  claim  remuneration  for  serv- 
ices rendered  after  she  had  been  in  the  household  of  her  benefactor  for 
some  eight  or  nine  years.  At  the  time  she  was  taken  from  the  orphan- 
age she  was  altogether  too  young  to  raise  any  inference  that  she  was 
to  be  requited  for  services.  There  is  no  conflict  in  the  testimony  that 
Mr.  Randolph  faithfully  discharged  his  assumed  duty  of  a  foster  par- 
ent during  the  minority  of  the  plaintiff ;  and  consequently  his  estate 
is  not  liable  for  services  rendered  during  her  minority.  There  are 
several  reported  cases  in  this  state  (Hudson  v.  Hudson,  90  Ga.  581,  16 
S.  E.  349;  Phinazee  v.  Bunn,  123  Ga.  230,  51  S'.  E.  300)  where  recov- 
eries were  sustained  in  suits  by  children  against  parents  upon  implied 
contract;  but  in  these  cases  compensation  was  claimed  for  services 
rendered  after  the  child's  majority. 

3.  The  plaintiff' 'embraced  in  her  suit  items  for  services  rendered 
subsequently  to  her  majority.  With  respect  to  her  right  to  compensa- 
tion for  services  rendered  since  her  majority,  it  may  be  stated  as  a 
general  rule  that,  when  services  are  rendered  and  voluntarily  accepted, 
the  law  will  imply  a  promise  on  the  part  of  the  recipient  to  pay  for 
them.  There  are  exceptions  to,  and  limitations  upon,  this  general  rule, 
one  of  which  is  that,  where  services  are  rendered  by  members  of  a 
family  living  in  one  household,  no  such  implication  will  arise  from  the 
mere  rendition  and  acceptance  oi  the  service.  This  exception  is  not 
confined  to  cases  where  the  parties  sustain  the  relation  of  parent  and 
child,  but  is  extended  also  to  strangers  who  have  been  received  into  the 
family  as  members  of  the  household.  Williams  v.  Hutchinson,  Tyler 
V.  Burrington,  supra;  Hogg  v.  Laster,  56  Ark.  382,  19  S.  W.  975; 
Scully  V.  Scully,  28  Iowa,  548.     The  reason  for  the  exception  is  thus 


Sec.  1)  ACTING  WITHOUT   EXPECTING   COMPENSATION  435 

Stated  by  Chancellor  McGill :  "The  household  family  relationship  is 
presumed  to  abound  in  reciprocal  acts  of  kindness  and  good  will,  which 
tend  to  tlie  mutual  comfort  and  convenience  of  the  members  of  the 
family,  and  are  gratuitously  performed;  and  where  that  relation  ap- 
pears, the  ordinary  implication  of  a  promise  to  pay  for  services  does 
not  arise,  because  the  presumption  which  supports  such  implication  is 
nullified  by  the  presumption  that  between  members  of  a  household 
services  are  gratuitously  rendered.  The  proof  of  the  services  and -as 
well  as  the  family  relation  leaves  the  case  in  equipoise,  from  which  the 
plaintiff  must  remove  it,  or  fail."  Disbrow  v.  Durand,  54  N.  J.  Law, 
343,  24  Atl.  545,  33  Am.  St.  Rep.  678.  Therefore,  where  one  who  has 
been  received  in  infancy  into  a  family  not  of  kin  to  her  seeks  to  recov- 
er for  services  rendered  to  such  family  after  her  majority,  the  burden 
is  upon  her  to  show  either  an  express  contract,  or  circumstances  from 
which  a  contract  of  remuneration  for  such  services  may  be  implied. 
What  circumstances  might  be  sufficient  to  imply  a  promise  to  pay  for 
services  rendered  would  depend  upon  the  special  facts  of  the  case, 
taking  into  account  the  nature  of  the  services,  the  relation  of  the  par- 
ties, declarations  made  at  the  time,  indicating  an  intent  of  the  recipient 
to  compensate  for  the  services  rendered,  and  the  like. 

As  the  case  is  to  be  tried  again,  we  will  forbear  a  discussion  of  the 
evidence  submitted  as  a  basis  for  such  inference,  further  than  to  say 
that  there  was  sufficient  evidence  to  submit  to  the  jury  the  plaintiff's 
right  to  recover  for  services  rendered  after  she  attained  her  major- 

it^AT"  ^         't^         T* 

Judgment  reversed.    All  the  Justices  concur.* 

4  Accord:  Hertzog  v,  Hertzog  (1857)  29  Pa.  465,  page  24,  supra  (father  and 
married  son) ;  Disbrow  v.  Durand  (1892)  54  N.  J.  Law,  343.  24  Atl.  543,  33 
Am.  St.  Rep.  678  (brother  and  sister) ;  Dye  v.  Kerr  (1851)  15  Barb.  (N.  Y.)  444 
(parent  and  child) ;  Houek  v.  Uouck  (1882)  99  Fa.  552  (father  and  married 
daughter) ;  Dunlap  v.  Allen  (1878)  90  111.  108  (parties  not  related,  but  plaintiff 
treated  as  member  of  family). 

Where  the  facts  show  a  mutual  intention  that  compensation  be  given,  a 
recovery  is  allowed,  despite  the  family  relationship.  Lillard  v.  Wilson  (1903) 
178  Mo.  145,  77  S.  W.  74;  Mathias  v.  Tiugey  (1911)  39  Ttah,  561,  118  Pac. 
781,  38  L.  R.  A.  (N.  S.)  749.  In  the  latter  case  an  adult  daughter,  who  had 
for  many  years  lived  apart  from  her  motlier  and  supported  herself,  postponed 
her  own  marriage,  returned  home,  and  for  two  years  nursed  her  mother,  who 
was  unwell  and  at  times  helpless,  until  the  mother's  death.  No  express  agree- 
ment for  compensation  was  sho\AT3.  The  court  upheld  a  verdict  for  the  plain- 
tiff, saying :  "If  from  all  the  facts  and  circumstances  surrounding  the  par- 
ties, and  under  which  the  services  were  commenced  and  rendered,  it  can  be 
reasonably  inferred  that  the  child  expected  to  receive  remuneration,  and  the 
parent  intended  to  pay  for  the  services,  a  promise  to  paj'^  therefoi-e  ma^'  be  im- 
plied." 

Some  few  jurisdictions  seem  to  require  proof  of  an  express  promise.  Zim- 
merman V.  Zimmerman  (1889)  129  Pa.  229,  18  Atl.  129,  15  Am.  St.  Rep.  720; 
Hinkle  v.  Sage  (1902)  67  Ohio  St.  2.56,  65  N.  E.  999. 

The  authorities  are  collected  in  a  note  in  11  L.  R.  A.    (N.  S.)  873. 

In  Boardman  v.  Ward  (1889)  40  Minn.  399,  42  N.  W.  202,  12  Am.  St  Rep. 
749,  the  defendant  was  the  guardian  of  the  plaintiff,  who  was  an  orphan. 
Plaintiff  lived  in  defendant's  house  during  her  minority,  jiiid  continued  to  do 
so  after  attaining  her  majority,  defendant  inducing  in  her  the  belief  that 
she  was  considered  by  him  as  a  member  of  his  family.     Upon  learning  that  de- 


436  BENEFITS   WITHOUT  CONTRACT  (Ch.  4 

OSBORN  V.  GOVERNORS  OF  GUY'S  HOSPITAU 

(At  Guildhall,  before  Raymond,  C.  J.,  1727.     2  Strange,  728.) 

The  plaintiff  brought  a  quantum  meruit  pro  opere  et  labore  in  trans- 
acting Mr.  Guy's  stock  affairs  in  the  year  1720.  It  appeared  he  was 
no  broker,  but  a  friend ;  and  it  looked  strongly,  as  if  he  did  not  expect 
to  be  paid,  but  to  be  considered  for  it  in  his  will.  And  the  Chief  Jus- 
tice directed  the  jury,  that  if  that  was  the  case,  they  could  not  find  for 
the  plaintiff,  though  nothing  was  given  him  by  the  will ;  for  they  should 
consider  how  it  was  understood  by  the  parties  at  the  time  of  doing  the 
business,  and  a  man  who  expects  to  be  made  amends  by  a  legacy,  can- 
not afterwards  resort  to  his  action." 

fendant  had  been  drawing  upon  her  funds  to  pay  for  her  support  and  main- 
tenance, she  sued  the  defendant  for  the  value  of  her  services.  The  court  af- 
firmed a  judgment  in  plaintiff's  favor,  saying  that  defendant,  having  elected 
to  treat  her  as  his  ward  and  charge  her  for  her  board  and  lodging,  "will  not 
now  be  permitted  to  change  his  ground,  and  take  advantage  of  her  ignorance 
and  his  fraud  to  treat  her  as  a  member  of  his  family,  so  as  to  defeat  her 
claim  for  services.  Under  such  circumstances  the  law  will  raise  an  obliga- 
tion to  pay  what  the  services  are  reasonably  worth,  and  assumpsit  will  lie  to 
recover  the  same." 

Compare  Hickam  v.  Hickam  (1891)  46  Mo.  App.  496  (defendant  after  the 
Emancipation  Proclamation  fraudulently  induced  plaintiff  to  continue  in  his 
service  and  to  work  without  compensation  in  the  belief  that  she  was  still  a 
slave ;  recovery  allowed) :  and  Livingston  v.  Ackeston  (1826)  5  Cow.  (N.  Y.) 
5."!1  (a  freedman  worked  for  defendant  without  pay,  both  parties  believing  that 
plaintiff"  was  defendant's  slave:  recovery  denied).  See,  also,  Cooper  v.  Coop- 
er, jiage  -i'Ad,  infra ;    Patterson  v.  Prior,  page  584,  infra. 

s  Accord:  Little  v.  Dawson  (1791)  4  Dall.  (Pa.)  Ill,  1  L.  Ed.  763;  Messier 
v.  Messier  (1912)  34  R.  I.  233,  82  Atl.  996,  semble. 

But  where  there  was  a  mutual  intention  that  a  charge  be  made  for  the 
services,  the  postponement  of  the  presentation  of  a  bill  in  the  hope  of  receiving 
a  legacy  does  not  deprive  the  plaintiff"  of  his  right  to  recover  compensation 
for  such  services.  Baxter  v.  Gray  (1842)  4  Scott,  N.  R.  374 ;  Grandin  v.  Read- 
ing (1855)  10  N.  J,  Eq.  (2  Stockton)  370. 

Compare  Crane  v.  Ganung  (1903)  89  App.  Div.  398,  85  N.  Y.  Supp.  975. 

"Where,  from  the  circumstances  of  the  case,  it  is  manifest  that  it  was 
understood  by  both  parties  that  compensation  should  be  made  by  will  [for 
services  rendered],  and  none  is  made,  an  action  lies  to  recover  what  the 
services  were  reasonably  worth."  Von  Carlowitz  v.  Bernstein  (1902)  28  Tex. 
Civ.  App.  8,  66  S.  W,  464;  Martin  v.  Wright's  Administrators  (1835)  13 
Wend.  (N.  Y.)  460,  28  Am.  Dec.  468;  Davison  v.  Davison  (1861)  .13  N.  J. 
Eq.  246 ;  Messier  v.  Messier  (1912)  34  R.  I  233,  82  Atl  990.  Compare  Gay  y. 
Mooney,  page  315,  supra. 


Sec.  1)  ACTING   WITHOUT   EXPECTING   COMPENSATION  437 

CLARY  V.  CLARY. 

(Supreme  Judicial  Com-t  of  Maine,  1899.     93  Me.  220,  44  Atl.  921.) 

Exceptions  from  superior  court,  Kennebec  county. 

Assumpsit  for  defendant's  board  by  the  plaintiff  on  the  following 

account  annexed  to  the  writ : 

"Filmore  R.  Clary  to  Sarah  A.  Clary,  Dr. 

"To  board,  care,  and  nursing  from  December  25,  1896,  to  and  inclusive 

of  Apr.  1,  1897,  13  weeks  and  5  days,  at  $4.50  per  week $61  71" 

The  case  was  tried  to  a  jury  in  the  superior  court  for  Kennebec 
county,  where  a  verdict  was  returned  for  the  plaintiff,  and  defendant 
excepts. 

FoGLER,  J.  This  is  an  action  of  assumption  upon  an  account  an- 
nexed to  the  writ,  wherein  the  plaintiff  sues  to  recover  for  board  and 
nursing  furnished  by  her  to  the  defendant.  The  verdict  was  for  the 
plaintiff,  and  the  case  comes  here  on  motion  for  new  trial  and  on  ex- 
ceptions to  the  rulings  and  instructions  of  the  judge  of  the  superior 
court  for  the  county  of  Kennebec,  before  whom  the  case  was  tried. 
The  plaintiff  and  the  defendant  were  formerly  husband  and  wife,  but 
had  been  divorced  some  time  before  the  time  included  in  the  account 
sued. 

The  testimony  discloses  that  on  or  about  the  middle  of  January, 
1897,  the  defendant,  being  sick  and  out  of  work,  came  to  the  plaintift''s 
house,  and  boarded  with  her,  with  her  consent,  until  the  20th  of  the 
following  March,  and  was  nursed  by  her  during  a  portion  of  that  time. 
Before  the  defendant  so  commenced  to  board  with  the  plaintiff',  the 
plaintiff  and  the  defendant  had  mutually  promised  each  other  to  re- 
marry, and  such  marriage  contract  existed  during  all  the  time  that  the 
defendant  boarded  with  the  plaintiff  Subsequently,  and  before  the 
commencement  of  this  suit,  the  defendant  married  another  woman. 
The  plaintiff  does  not  rely  upon  an  express  promise  on  the  part  of  the 
defendant  to  pay  for  such  board  and  nursing,  but  claims  that  a  promise 
is  implied  by  law,  under  the  circumstances  of  the  case.  The  plaintiff 
testified,  on  cross-examination,  as  follows :  "Q.  Now,  when  he  came 
there  the  1st  of  January,  sick,  as  you  say,  and  you  had  made  up  your 
mind  to  marry  him  again,  and  had  promised  to  marry  hinT  again,  did 
you  intend  to  charge  him  pay  for  his  board  ?  A.  No,  sir ;  if  he  married 
me.  Q.  Did  you  tell  him  that?  A.  No,  sir;  because  the  bill  was  not 
talked  over.  Q.  When  he  came  there,  and  when  you  washed  his  feet 
and  nursed  him,  and  made  up  his  bed,  and  got  his  victuals  for  him,  did 
you  have  any  intention  in  your  mind  at  that  time  to  charge  him  for 
those  things  ?  A.  No,  sir ;  I  did  not,  at  that  time.  Q.  When  was  it 
that  you  made  up  your  mind  to  charge  him  ?  A.  I  never  made  up  my 
mind  to  ask  him  anything  for  board  until  the  last  time  I  was  down  and 
settled  with  you.  Q.  What  date?  A.  I  think  it  was  November  11th. 
Q.  So  that,  as  you  say,  you  never  intended  to  charge  him  anything  for 


438  BENEFITS   WITHOUT   CONTRACT  (Ch.  4: 

his  board  and  nursing  until  you  came  to  me,  in  November?  A.  No, 
sir;  I  did  not." 

On  redirect,  the  plaintiff  testified :  "When  he  came  there,  there  was 
an  understanding  that  I  should  marry  him.  I  never  at  any  time  agreed 
with  him  that  he  should  not  pay  board.  Nothing  was  said  between  Mr. 
Clary  and  me  in  regard  to  his  board." 

The  case  of  La  Fontain  v.  Hayhurst,  89  Me.  388,  36  Atl.  623,  56 
Am.  St.  Rep.  430,  is  almost  identical  in  point  of  fact,  and  precise- 
ly identical  in  point  of  law,  with  the  case  at  bar,  and  is  decisive 
against  the  right  of  the  plaintiff  to  maintain  this  action.  There, 
as  here,  the  plaintiff  sued  tlie  defendant  for  board.  Before  such 
board  was  furnished  the  defendant  had  promised  to  marry  the 
plaintiff,  but  subsequently  married  another  woman.  The  plaintiff 
testified  tliat  at  the  time  such  board  was  furnished  she  did  not  intend  to 
charge  the  defendant  therefor.  In  that  case,  as  in  this,  board  was  not 
furnished  in  consideration  of  a  promise  of  marriage,  but,  rather,  on 
account  of  the  relations  existing  between  the  parties  by  reason  of  such 
a  prior  promise. 

In  La  Fontain  v.  Hayhurst,  supra,  the  court,  after  stating  the  well- 
settled  doctrine  that  no  binding  promise  to  make  compensation  can  be 
implied  or  inferred  in  favor  of  one  party  against  another,  unless  the 
one  party  (the  party  furnishing  the  consideration)  then  expected,  and 
from  the  language  or  conduct  of  the  other  party,  under  the  circum- 
stances, had  reason  to  expect,  such  compensation  from  the  other  party,* 
held  that,  as  the  plaintiff  did  not  expect  compensation  for  tlie  board 
furnished  in  money  or  money's  worth,  the  plaintiff  could  not  recover. 
Following  the  decision  in  that  case,  it  is  clear  that,  in  the  case  at  bar, 
the  action  is  not  maintainable,  and  the  motion  for  new  trial  must  be 
sustained. 

We  perceive  no  error  in  the  rulings  and  instructions  of  the  presiding 
judge  to  which  exceptions  are  taken,  and  the  exceptions  should  be  over- 
ruled. 

Exceptions  overruled.    Motion  sustained.    New  trial  granted.^ 

*In  Thomas  v.  Thomasville  Shootin.sr  Club  (1897)  121  N.  C.  238,  28  S.  E.  293, 
plaintiff  performed  services  for  defendant  withont  expectation  of  compensa- 
tion, but  defendant  at  the  time  expected  to  pay  for  them.  Held,  that  plain- 
tiff might  recover  the  value  of  such  services.  See  Woodward,  Quasi  Con- 
tracts. §  47. 

«  "If  a  person  has  made  his  addresses  to  a  lady  for  some  time,  upon  a  view 
of  marriage,  and,  upon  reasonable  expectation  of  success,  malies  presents 
to  a  considerable  value,  and  she  thinks  proper  to  deceive  him  afterwards,  it 
is  very  right  that  the  presents  themselves  should  be  returned,  or  the  value  of 
them  allowed  to  him:  but,  where  presents  are  made  only  to  introduce  a  per- 
son to  a  woman's  acquaintance,  and  by  means  thereof  to  gain  her  favour,  I 
looli  upon  such  person  only  in  the  light  of  an  adventurer,  especially  where 
there  is  a  disproportion  between  the  lady's  fortune  and  his,  and  therefore, 
like  all  other  adventurers,  if  he  will  run  risques,  and  loses  by  the  attempt, 
he  must  take  it  for  his  pains."  Lord  Chancellor  Hardwicke  in  Robinson  v. 
Gumming  (1742)  2  Atk.  409. 

In  Williamson  v.  Johnson  (1890)  62  Vt.  378,  20  Atl.  279,  9  L.  R.  A.  277,  22 
Am.  St.  R^p.  117,  plaintiff  made  a  gift  of  money  to  his  fiancee  to  buy  her 


Sec.  1)  ACTING   WITHOUT   EXPECTING  COMPENSATION  439 


COOPER  V.  COOPER. 

(Supreme  Judicial  Court  of  Massachusetts,  ISSS.     147  Mass.  370,  17  N.  E.  802, 

9  Am.  St.  Rep.  721.) 

Exceptions  from  superior  court,  Suffolk  county ;  Bacon,  Judge. 

W.  AivLEN,  J.^  The  plaintiff  and  James  W.  Cooper  intermarried 
in  the  year  1869,  and  lived  together  as  husband  and  wife  until  his 
death,  in  1885.  After  his  death,  the  plaintiff  learned  that  a  former 
wife,  from  whom  he  had  not  been  divorced,  was  living,  and  brought 
this  action  of  contract  against  his  administrator,  to  recover  for  work 
and  labor  performed  by  her  as  housekeeper  while  living  with  the  in- 
testate. The  court  correctly  ruled  that  when  the  parties  lived  together 
as  husband  and  wife  tliere  could  be  no  implied  promise  by  the  hus- 
band to  pay  for  such  work.  The  legal  relations  of  the  parties  did  not 
forbid  an  express  contract  between  them,  but  their  actual  relations,  and 
the  circumstances  under  which  the  work  was  performed,  negatived 
any  implication  of  an  agreement  or  promise  that  it  should  be  paid  for. 
Robbins  v.  Potter,  11  Allen,  588,  98  Mass.  532.  The  case  at  bar  can- 
not be  distinguished  from  that  cited,  unless  upon  the  grounds  that  the 
plaintiff  believed  that  her  marriage  was  legal,  and  that  the  intestate 
induced  her  to  marry  him  by  falsely  representing  that  he  had  been 
divorced  from  his  former  wife.  But  the  fact  that  the  plaintiff  was  led 
by  mistake  or  deceit  into  assuming  the  relation  of  a  wife,  has  no  ten- 
dency to  show  that  she  did  not  act  in  that  relation ;  and  the  fact  that 
she  believed  herself  to  be  a  wife  excludes  the  inference  that  the  society 
and  assistance  of  a  wife  which  she  gave  to  her  supposed  husband  was 
for  hire.  It  shows  that  her  intention  in  keeping  his  house  was  to  act  as 
a  wife  and  mistress  of  a  family,  and  not  as  a  hired  servant.  There  was 
clearly  no  obligation  to  pay  wages  arising  from  contract;  and  the 
plaintiff's  case  is  rested  on  the  ground  that  tliere  was  an  obligation  or 
duty  imposed  by  law  from  which  the  law  raises  a  promise  to  pay  mon- 
ey, upon  which  the  action  can  be  sustained. 

The  plaintiff's  remedy  was  by  an  action  of  contract  for  breach  of 
promise  to  marry,  or,  if  she  was  induced  to  marry  by  false  representa- 
tions, of  tort  for  the  deceit.  Blossom  v.  Barrett,  37  N.  Y.  434,  97  Am. 
Dec.  747.  Her  injury  was  in  being  led  by  the  promise  or  the  deceit  to 
give  the  fellowship  and  assistance  of  a  wife  to  one  who  was  not  her 


trousseau.  After  making  her  purchases,  defendant  broke  her  engagement 
with  plaintiff  and  married  another  man.  The  court  hold  that  the  gift  was 
not  absolute,  but  conditional,  and  that  when  the  condition  failed  a  right  of 
action  ao.'rued  to  plaintiff  in  assumpsit  for  money  had  and  received  to  recover 
the  money. 

Compare  Cook  v.  Bates  (189(j)  88  Me.  455,  34  Atl.  2GG. 

7  The  statement  of  facts  is  omitted. 


440  BENEFITS   WITHOUT   CONTRACT  (Cll,  4 

husband,  and  to  assume  and  act  in  a  relation  and  condition  that  proved 
to  be  false  and  ignominious.  The  duty  which  the  intestate  owed  to  her, 
was  to  make  recompense  for  the  wrong  which  he  had  done  to  her.  It 
is  said  that  from  this  duty  the  law  raised  a  promise  to  pay  her  money 
for  the  work  performed  by  her  in  housekeeping.  The  obligation  to 
make  compensation  for  the  breach  of  contract  could  be  enforced  only 
in  an  action  upon  tlie  contract.  The  obligation  to  make  recompense 
for  tlie  injury  done  by  the  tort  was  imposed  by  law,  and  could  be  en- 
forced only  in  an  action  oi  tort.  It  was  not  a  debt  or  duty  upon  which 
the  law  raised  a  promise  which  would  support  an  action  of  contract. 
The  same  act  or  transaction  may  constitute  both  a  cause  of  action  in 
contract  and  in  tort,  and  a  party  may  have  an  election  to  pursue  either 
remedy,  and  in  that  sense  may  be  said  to  waive  the  tort  and  sue  in  con- 
tract. But  a  right  of  action  in  contract  cannot  be  created  by  waiving  a 
tort,  and  the  duty  to  pay  damages  for  a  tort  does  not  imply  a  promise 
to  pay  them,  upon  which  assumpsit  can  be  maintained.  Jones  v.  Hoar, 
5  Pick.  285 ;  Brown  v.  Holbrook,  4  Gray,  102 ;  Ferguson  v.  Carring- 
ton,  9  Barn.  &  C.  59.  See,  also.  Mete.  Cont.  9,  10;  1  Oiit.  Cont.  87; 
Earle  v.  Coburn,  130  Mass.  596;  Milford  v.  Com.,  144  Mass.  64,  10  N. 
E.  Rep.  516. 

But  the  objection  to  maintaining  the  plaintiff's  action  lies  deeper.  The 
work  and  labor  never  constituted  a  cause  of  action  in  tort.  The  plain- 
tiff could  have  maintained  no  action  of  tort  against  the  intestate  for 
witliholding  payment  for  her  work  and  labor  in  housekeeping,  or  for, 
by  false  representations,  inducing  her  to  perform  the  work  without 
pay.  The  particular  acts  which  she  performed  as  a  wife  were  not 
induced  by  the  deceit,  so  that  each  would  constitute  a  substantial  cause 
of  action,  but  by  the  position  which  she  was  deceived  into  assuming, 
and  would  be  elements  of  damage  in  an  action  for  that  deceit.  Labor 
in  housekeeping  was  a  small  incident  to  a  great  wrong,  and  the  in- 
testate owed  no  duty,  and  had  no  right  to  single  that  out  and  offer  pay- 
ment for  it  alone,  and  the  offer  to  do  so  might  well  have  been  deemed 
an  aggravation  of  tlie  injury  to  the  plaintiff. 

We  have  been  referred  to  Higgins  v.  Breen,  9  Mo.  497,  and  Fox  v. 
Dawson,  8  Mart.  (O.  S.)  (La.)  94,  as  decisions  contrary  to  the  conclu- 
sion which  we  have  reached.  It  does  not  appear  upon  what  ground  tlie 
latter  case  was  decided.  The  former  was  decided  in  favor  of  tlie  de- 
fendant, the  administrator,  upon  technical  grounds,  but  the  question  of 
his  liability  was  considered.  It  was  assumed  that  an  action  of  con- 
tract could  have  been  maintained  against  the  intestate  for  work  and 
labor,  and  the  question  discussed  was  whether  the  action  would  sur- 
vive against  his  administrator,  and  it  was  held  that  it  would.  Upon  the 
evidence  in  the  present  case  we  think  that  no  action,  certainly  no  action 
of  contract  for  the  cause  of  action  declared  on,  could  have  been  main- 
tained against  the  intestate.  Even  if  the  intestate  had  been  liable  in 
tort,  we  are  not  prepared  to  assent  to  the  proposition  that  an  action  of 


Sec.  1)  ACTING   WITHOUT   EXPECTING   COMPENSATION  441 

contract  will  lie  against  an  administrator  for  a  tort  of  his  intestate,  for 
which  no  action  of  contract  could  have  been  sustained  against  him. 

In  the  opinion  of  a  majority  of  the  court,  the  entry  must  be :   Excep- 
tions overruled.* 


ULMER  V.  FARNS WORTH. 

(Supreme  Judicial  Court  of  Maine,  1888.     80  Me.  500,  15  Atl.  65.) 

Danforth,  J.  The  plaintiffs  are  the  owners  of  a  lime  quarry,  in 
which  they  have  a  pump  used  for  the  purpose  of  draining  their  quarry 
from  such  water  as  may  accumulate  therein,  whether  coming  from 
sources  within  its  own  limits  or  outside.  The  defendant  owns  another 
quarry  adjacent  to,  but  not  adjoining,  the  plaintiffs',  there  being  one 
quarry  between  them.  It  is  alleged  that  water  accumulates  in  the  de- 
fendant's quarry,  and,  running  through  the  one  intervening,  comes 
upon  that  of  the  plaintiffs',  and  is  pumped  up  by  them.  It  is  to  recover 
compensation  for  this  service  that  this  action  is  brought,  the  plaintiffs 
alleging  that  the  defendant  receives  benefit  from  it,  as  it  prevents  the 
injurious  accumulation  of  water  in  his  own  quarry.  The  action  is  as- 
sumpsit, and  must  therefore  be  maintained,  if  at  all,  upon  proof  of  a 
promise,  express  or  implied.  The  case  shows  no  sufficient  proof  of  an 
express  promise.  Nor  will  the  facts  proved,  independent  of  the  alleged 
custom  or  usage  relied  upon  by  the  plaintiffs,  raise  an  implied  promise. 
The  pump  by  which  the  service  was  performed  was  situated  in  the 
plaintiffs'  quarry,  put  there  primarily  for  the  purpose  of  draining  their 
own  premises.  The  running  of  the  water  from  the  defendant's  quarry 
to  the  plaintiffs'  was  the  result  of  the  plaintiffs'  own  act  in  digging 
theirs  deeper  than  the  other.  The  benefit  accruing  to  the  defendant,  if 
any,  was  merely  incidental,  with  no  legal  right  to  interfere  with  the 
operation  of  the  pump,  and  hence  under  no  obligation  to  give  notice  of 
a  denial  of  liability.  These  circumstances  could  not  raise  an  implied 
promise  on  the  part  of  the  defendant, — certainly  not  if  he  was  guilty  of 
no  wrong  in  permitting  the  water  to  run  as  it  did,  and  if  he  was  guilty 
the  remedy  would  be  in  another  form  of  action ;  and,  when  we  add 
to  this  the  unqualified  and  uncontradicted  denial  of  the  defendant  that 
any  contract  was  made,  we  must  come  to  the  conclusion  that  the  testi- 
mony not  only  fails  to  sustain  a  promise,  but  that  in  fact  none,  either 
express  or  implied,  ever  existed. 

But  the  plaintiffs  rely  upon  an  alleged  custom  or  usage  in  that  neigli- 

8  Accord :  Payne's  Appeal  (1895)  65  Conn.  397,  32  Atl.  948,  33  L.  R.  A.  418, 
48  Am.  St.  Rep.  215.     Contra:   Higgius  v.  Breen  (1845)  9  Mo.  497. 

Where  the  plaintiff  is  aware  that  the  cohabitation  is  illicit,  such  guilty 
knowledge  is  of  itself  a  reason  for  denying  recovery.  Swires  v.  Parsons  (1843) 
5  Watts  &  S.  (Pa.)  357.     Brown  v.  Tuttle  (1888)  80  Me.  162,  13  Atl.  583. 

Contra:  Succession  of  I.lula  (1892)  44  La.  Ann.  61,  10  South.  406  (on  the 
ground  that  the  illicit  relation  was  incidental  and  not  the  motive  of  the  par- 
ties living  together). 


442  BENEFITS   WITHOUT   CONTRACT  (Cll.  4 

borhood  by  which,  under  like  circumstances,  the  parties  receiving  this 
incidental  benefit  have  recognized  a  liability  to  pay  a  certain  specified 
sum  (one  cent)  for  each  cask  of  lime  burned  from  the  rock  taken  out 
of  the  quarry  thus  drained.  It  is  claimed  that  this  usage  of  itself  raises 
an  implied  promise  on  the  part  of  the  defendant."  *  *  *  This  ac- 
tion must  therefore  fail,  whatever  remedy  may  be  open  to  the  plaintiffs 
in  a  process  of  a  different  form.    Judgment  for  defendant.^" 

9  The  court,  in  a  portion  of  the  opinion  whicti  is  here  omitted,  held  that 
such  a  usage  to  make  payment  for  this  service  was  not  proved  with  sufficient 
definiteness,  and  further,  that,  being  a  local  usage,  it  could  not  be  received 
"to  impose  a  contract  liability  in  direct  opposition  to  the  established  prin- 
ciple of  law  requiring  assent  to  a  binding  contract." 

10  In  United  States  v.  Pacific  Railroad  (1887)  120  U.  S.  227,  7  Sup.  Ct.  490. 
30  L.  Ed.  6o4,  it  was  held  that  the  United  States  government  could  not  claim^ 
reimbursement  from  the  defendant  railroad  company  for  rebuilding  for  mili- 
tary purposes,  during  the  Civil  War,  certain  bridges  on  defendant's  line  which 
had  been  destroyed  in  the  course  of  military  operations ;  Field,  J.,  saying, 
(120  U.  S.  239,  240,  7  Sup.  Ct.  496,  30  L.  Ed  634) :  "Private  parties  cannot  be 
charged  for  works  construc-ted  on  their  lands  by  the  government  to  further 
the  operation  of  its  armies.  *  *  *  Military  necessity  will  justify  the  de- 
struction of  property,  but  will  not  compel  private  parties  to  erect  on  their 
own  lands  works  needed  by  the  goveniment.  The  cost  of  building  and  repair- 
ing roads  and  bridges  to  facilitate  the  movements  of  troops,  or  the  transporta- 
tion of  supplies  and  munitions  of  war,  must,  therefore,  be  borne  by  the  govern- 
ment. It  is  true  that  in  some  instances  the  works  thus  constructed  may,  aft- 
erwards, be  used  by  the  owner;  a  house  built  for  a  barrack,  or  for  the  storage 
of  supplies,  or  for  temporary  fortification,  might  be  converted  to  some  pur- 
poses afterwards  by  the  owner  of  the  land,  but  that  circumstance  would  im- 
pose no  liability  upon  him.  Whenever  a  structure  is  permanently  afhxed  to 
real  property  belonging  to  an  individual,  without  his  consent  or  request,  he 
cannot  be  held  responsible  because  of  its  subsequent  use.  It  becomes  his 
by  being  annexed  to  the  soil ;  and  he  is  not  obliged  to  remove  it  so  as  to  incur 
an  obligation  to  pay  for  it,  merely  because  he  has  not  chosen  to  tear  it  down, 
but  has  seen  fit  to  use  it." 

In  Kuabon  Steamship  Co.  v.  London  Assurance,  [1900]  A.  C.  6,  it  appeared 
that  during  a  voyage  covered  by  a  policy  of  marine  insurance  a  vessel  was 
damaged  by  a  peril  insured  against  and  was  therefore  put  into  dry  dock  for 
the  necessary  repairs.  The  survey  of  the  vessel  for  renewing  her  classifica- 
tion was  not  due,  but  the  owners  (without  causing  delay  or  increase  of  dock 
expenses)  took  advantage  of  her  being  in  dry  dock  to  have  the  survey  made 
and  her  classification  renewed.  The  House  of  Lords  held  that  the  expenses 
of  getting  the  vessel  into  and  out  of  the  dock,  as  well  as  those  incurred  in 
the  use  of  the  dock,  fell  upon  the  underwriters  alone,  and  could  not  be  appor- 
tioned between  them  and  the  owners,  on  the  ground  that  "there  is  no  principle 
of  law  which  requires  that  a  person  should  contribute  to  an  outlay  merely 
because  he  has  derived  a  material  benefit  from  it." 

See.  also,  Loring  v.  Bacon,  4  Rlass.  575. 

If  plaintiff  performs  services  pursuant  to  a  contract  between  plaintiff  and  a 
third  party,  the  fact  that  such  services  have  benefited  defendant  imposes  no 
obligation  on  defendant  to  remunerate  plaintiff.  Coleman  v.  United  States 
(1894)  152  U.  S.  96,  14  Sup.  Ct.  473,  38  L.  Ed.  368  (plaintiff's  performance  of 
legal  services  for  his  client  benefited  defendant) ;  Cahill  v.  Hall  (1894)  161 
Mass.  512,  37  N.  E.  573  (plaintiff  trained  defendant's  colt  under  a  contract 
with  defendant's  son). 


Sec.  1)  ACTING   WITHOUT   EXPECTING  COMPENSA.TION  443 

t 

GRIFFIN  V.  SANSOM. 

(Court  of  Civil  Appeals  of  Texas.  1903.     31  Tex.  Civ.  App.  .500,  72  S.  W.  864.) 

Appeal  from  Hill  County  Court;  L.  C.  Hill,  Judge. 

Action  by  L.  H.  Sansom  against  John  R.  Grifiin.  Judgment  for 
plaintiff,  and  defendant  appeals. 

Templeton,  J.  A  party  wall  which  stood  on  the  dividing  line  be- 
tween the  lots  of  Sansom  and  Griffin  was  destroyed  by  natural  causes. 
The  wall  was  rebuilt  by  Sansom,  and  he  brought  this  suit  against  Grif- 
fin to  recover  one-half  the  cost  of  rebuilding.  A  trial  resulted  in  a 
judgment  in  favor  of  the  plaintiff,  and  the  defendant  appealed. 

It  was  alleged  in  the  plaintiff's  petition  "that  the  defendant  had  no- 
tice of  the  rebuilding  of  said  wall,  one-half  on  plaintiff's  and  one-half 
on  defendant's  lot,  and  it  was  so  rebuilt  with  the  knowledge  and  con- 
sent of  defendant ;  that  said  defendant  agreed  that  said  wall  be  rebuilt, 
and  promised  to  do  what  was  right  about  his  part  of  same ;  that  defend- 
ant meant  and  promised  thereby  to  pay  for  his  part,  or  one-half  of 
same ;  that  plaintiff,  relying  thereon,  rebuilt  the  wall ;  and  that  the  de- 
fendant thereby  became  indebted  to  plaintiff  for  one-half  of  said  wall 
so  rebuilt  by  plaintiff."  On  the  trial  the  plaintiff  testified  as  follows : 
"When  I  went  to  rebuild  the  division  wall  between  my  lot  and  defend- 
ant's, I  went  to  defendant  and  asked  him  to  help  me  rebuild  it,  and  he 
told  me  that  it  might  be  two  or  three  years  before  he  would  use  it,  and 
he  would  not  help  me  build  it  back.  I  asked  him  if  he  did  not  expect  to 
build  there  some  time,  and  he  said  'Yes,'  and  I  said  then  why  not  help 
me  build  it  back.  That  is  all  the  conversation  I  think  we  had.  *  *  * 
When  I  went  to  rebuild  the  wall,  I  went  to  him  and  told  him  about  go- 
ing to  rebuild;  and  he  told  me  in  this  connection  just  what  I  stated 
a  while  ago,  and  I  told  him  that  he  had  to  pay  for  one-half  the  wall. 
He  never  made  any  objection  to  paying  for  one-half  the  wall.  He 
knew  of  my  rebuilding  the  wall,  and  never  objected  to  it." 

It  is  manifest  that  this  testimony  does  not  establish  the  promise  or 
agreement  alleged,  and  that  if  the  plaintiff's  petition  does  not  state  a 
cause  of  action,  independent  of  such  promise  or  agreement,  the  judg- 
ment in  his  favor  was  not  warranted.  It  was  alleged  in  the  petition 
that  after  the  plaintiff  had  rebuilt  the  wall  the  defendant  joined  to  and 
made  use  of  the  same.  That  fact  would  not,  of  itself  alone,  render 
the  defendant  liable  for  any  part  of  the  cost  of  rebuilding.  The  owner 
of  real  estate  may  lawfully  appropriate  to  his  own  use  improvements 
which  have  been  voluntarily  placed  thereon  by  another,  without  becom- 
ing liable  for  the  value  of  such  improvements.  Antomarchi's  Ex'r  v. 
Russell,  63  Ala.  356,  35  Am.  Rep.  40.  The  defendant  herein  was  under 
no  legal  obligation  to  assist  in  rebuilding  the  wall,  and  mere  knowledge 
on  his  part  that  the  plaintiff  was  rebuilding  the  wall  would  not  create 
such  obligation.    If,  however,  the  plaintiff  built  the  wall  with  tlie  ex- 


i44  BENEFITS   WITHOUT   CONTRACT  (Ch.  4 

pectation  that  the  defendant  would,  when  he  got  ready  to  make  use  of 
the  same,  pay  part  of  the  cost  of  construction,  and  the  defendant  had 
reason  to  know  that  the  plaintiff  was  so  acting  with  that  expectation, 
and  allowed  him  so  to  act  without  objection,  then  the  defendant,  when 
he  joined  to  and  made  use  of  the  wall,  would  become  liable  to  the  plain- 
tiff for  one-half  of  the  cost  of  the  wall.  Day  v.  Caton,  119  Mass.  513, 
20  Am.  Rep.  347.  No  such  cause  of  action  is  set  up  in  the  petition, 
and  no  other  theory  of  liability  is  suggested  by  the  evidence.  The  judg- 
ment will  be  reversed,  and  the  cause  remanded. 
Reversed  and  remanded.^ ^ 

11  Contra:  Spaulding  v.  Grundy,  126  Ky.  510,  104  S.  W.  293,  13  L.  R.  A.  (N. 
S.)  149,  128  Am.  St.  Rep.  328,  15  Ann.  Cas.  1105. 

For  a  collection  of  the  authorities  and  a  discussion  of  the  statutes  found 
in  some  states,  see  note  in  66  L.  R.  A.  705,  706. 

Recovery  fob  Impeovements. — At  common  law  an  occupant  of  land  in  good 
faith  and  under  color  of  title,  who  makes  improvements  on  the  land  and  is 
thereafter  ousted  by  the  true  owner,  cannot  recover  for  the  value  of  such 
improvements.  Webster  v.  Stewart  (1858)  6  Iowa,  401.  Some  decisions  allow 
a  recovery  in  equity.  Bright  v.  Boyd  (1841)  1  Story  (U.  S.  C.  C.)  478,  Fed. 
Cas.  No.  1,875.  But  the  weight  of  authoritv  is  contra.  Putnam  v.  Ritchie 
(1837)  6  Paige  (N.  Y.)  390;  Anderson  v.  Reid  (1899)  14  App.  D.  C.  54.  Yet, 
on  the  principle  that  he  who  seeks  equity  must  do  equity,  if  the  owner  of  the 
property  resorts  to  a  court  of  equity  to  establish  his  rights,  as  a  condition 
of  relief  such  owner  must  make  compensation  for  improvements  made  by  the 
bona  fide  occupant.  Skiles'  Appeal  (1885)  110  Pa.  248,  20  Atl.  722 ;  Thomas  v. 
Evans  (1887)  105  N.  Y.  601,  12  N.  E.  571,  59  Am.  Rep.  519.  And  on  the  same 
principle,  if  the  owner  brings  an  action  for  mesne  profits,  the  bona  fide  occu- 
pant may  set  off  or  recoup  the  value  of  his  improvements.  Jackson  v.  Loomia 
(1825)  4  Cow.  (N.  Y.)  168,  15  Am.  Dec.  347 ;    Ege  v.  Kille  (1877)  84  Pa.  333. 

The  harshness  of  the  common-law  doctrine  has  resulted  in  statutory  enact- 
ments known  as  "Betterment  Acts,"  or  "Occupying  Claimants  Acts,"  under 
which  the  bona  fide  occupant  is  given  a  lien  on  tlie  land  for  an  amount  equal 
to  the  extent  to  which,  his  improvements  have  enhanced  its  value.  Griswold 
v.  Bragg  (C.  C.  1880)  48  Fed.  519;  Wakefield  v.  Van  Tassell  (1905)  218  111. 
572,  75  N.  E.  1058. 

Similarly,  in  the  case  of  improvement  of  personalty  by  an  innocent  trespass- 
er, no  relief  is  allowed  by  direct  action  at  law.  Isle  Royale  Mining  Co.  v. 
Hertin  (1877)  37  Mich.  332,  26  Am.  Rep.  520 ;  Gaskins  v.  Davis  (1894)  115  N. 
C.  85,  20  S.  E.  188,  25  L.  R,  A.  813,  44  Am.  St.  Rep.  4.39.  But  when  such  inno- 
cent trespasser  is  sued  for  conversion  he  is  allowed  to  reduce  the  damages  to 
the  value  of  the  goods  at  the  time  and  place  of  conversion.  Wooden-Ware 
Co.  v.  United  States  (1882)  106  U.  S.  432,  1  Sup.  Ct.  398,  27  D.  Ed.  230;  Trus- 
tees of  Dartmouth  College  v.  International  Paper  Co.  (C.  C.  1904)  132  Fed. 
92.     See,  also.  State  v.  Shevlin  Carpenter  Co.  (1895)  62  Minn.  99,  64  N.  W.  81. 

Compare  Ford  T.  Stroud,  and  note  thereto,  page  335,  supra. 


Sec.  2)  INTENTION  TO   CLAIM   COMPENSATION  445 


SECTION  ;;.— PLAINTIFF   ACTED   WITH    INTENTION    OF 
CLAIMING  COMPENSATION 


INHABITANTS  OF  SOUTH  SCITUATE  v.  INHABITANTS  OF 

HANOVER. 

(Supreme  Judicial  Court  of  Massachusetts,  1857.    9  Gray,  420.) 

Action  of  contract  to  recover  half  the  fees  paid  by  the  plaintiffs  to 
the  commissioners  appointed  by  the  governor  to  establish  the  boundary 
line  between  South  Scituate  and  Hanover,  under  the  Resolve  of  1856, 
c.  79,  which  provided  "that  the  said  towns  of  South  Scituate  and  Han- 
over shall  be  required  to  defray  the  expenses  of  said  commission,  each 
of  said  towns  paying  one  half  of  said  expenses."  The  plaintiff's  had 
paid  the  whole  fees,  without  being  requested  by  the  defendants  so  to  do. 

BiGELow,  J.  There  is  nothing  in  the  facts  of  this  case  from  which 
a  promise  by  the  defendants,  either  express  or  implied,  can  be  inferred 
to  pay  the  plaintiffs  the  money  sought  to  be  recovered  in  this  action. 
It  is  true  that  the  defendants  were  legally  liable,  under  tlie  resolve  of 
the  legislature  of  May  31,  1856,  to  pay  one  half  of  the  expenses  of  the 
commission  appointed  to  establish  the  boundary  line  between  the  towns 
of  South  Scituate  and  Hanover.  But  this  was  a  liability  either  to  the 
commissioners  or  to  the  Commonwealth,  and  not  to  the  plaintiffs. 
There  is  no  provision  in  the  resolve,  authorizing  or  requiring  the  plain- 
tiffs to  pay  the  whole  expenses,  and  rendering  the  defendants  liable 
for  one  half  thereof  to  the  plaintiffs.  It  was  a  voluntary  payment  by 
the  plaintiffs  of  a  debt  due  from  the  defendants.  Such  payment  gives 
no  cause  of  action.  It  falls  within  the  well  settled  rule  of  law,  that 
the  payment  of  the  debt  of  another  raises  no  assumpsit  against  the 
person  whose  debt  is  paid,  and  no  action  will  lie  by  reason  of  such 
payment,  unless  a  request,  either  express  or  implied,  to  make  the  pay- 
ment is  proved.  The  law  does  not  permit  the  liability  of  a  party  for 
a  debt  to  one  person  to  be  shifted  so  as  to  make  him  debtor  to  an- 
other without  his  consent.    Winsor  v.  Savage,  9  Mete.  348. 

Judgment  for  the  defendants.^* 

12  In  stokes  v.  Lewis  (ITS.^i)  1  T.  R.  21,  two  parishes  employed  a  common 
sexton  for  £20.  per  year,  eaclj  parish  paying  £10.  Pending  a  dispute  as  to  the 
right  of  one  parish  to  choose  its  own  .sexton,  the  other  parish  chose  a  sexton, 
paid  him  £20.  for  the  first  year,  and  sued  the  first  parish  for  a  moiety  thereof. 
Held  for  defendant:  Lord  Mansfield,  C.  .7.,  saying:  "One  parish  paid  the 
quota  of  the  other  in  spite  of  their  teeth  ;  then  can  it  be  said  that  this  action 
for  money  paid,  laid  out  and  expended,  will  lie?  Certainly  not.  Tlie  action 
must  be  grounded  either  on  an  express  or  implied  consent ;    here  Is  neither." 

In  Jones  v.  Wilson  (1808)  3  Johns.  (N.  Y.)  434,  plaintiff,  a  con.stable,  receiving 
an  execution  against  defendant  issued  at  snit  of  a  tlurd  party,  paid  the 
amount  thereof  to  such  third  party  witliout  making  any  demand  on  the  de- 


446  BENEFITS   WITHOUT   CONTRACT  (Cll.  4 


NOBLE  V.  WILLIAMS. 

(Supreme  Court  of  Kentucky,  1912.     150  Ky.  439,  150  S.  W.  507,  42  L.  R.  A. 

[N.  S.]  1177.) 

Appeal  from  Circuit  Court,  Breathitt  County. 

Action  by  E.  J.  Noble  and  others  against  Kash  C.  Williams  and  oth- 
ers.   From  a  judgment  for  defendants,  plaintiffs  appeal. 

Winn,  J.  According  to  the  allegations  of  the  petition,  the  appel- 
lants, the  plaintiffs,  were  hired  to  teach  the  public  school  in  Jackson, 
Ky.,  for  the  fall  term  of  1908.  The  school  board  failed  to  pay  rent  for 
the  schoolhouse,  to  buy  the  coal,  to  furnish  the  seats,  crayons,  black- 
boards, and  the  like,  incident  and  necessary  to  the  conduct  of  the 
school.  Plaintiffs  allege  that  they,  in  order  to  conduct  the  school,  were 
obliged  to  and  did  pay  the  rent  and  buy  these  supplies.  They  allege 
no  request  by  the  school  board  that  they  should  do  so,  nor  any  promise 
by  the  board  to  reimburse  them.    They  sought  to  recover,  nevertheless, 

fendant  and  without  his  request.  Held,  that  plaintiff  could  not  maintain  ac- 
tion asainst  defendant  for  the  money  so  iinid. 

In  McGlew  v.  McDade  a905)  146  Cal.  553,  80  Pac.  695,  the  plaintiff,  a  broth- 
er of  the  defendant's  intestate,  paid  a  debt  due  for  professional  services  of  a 
physician  during  the  intestate's  last  illness,  without  talving  an  assignment 
of  the  claim  and  without  being  requested  to  make  such  payment.  Held  for  the 
defendant:  "The  estate  was  not  bound  to  accept  the  plaintiff  as  its  creditor 
without  its  consent." 

In  Bateson  v.  Phelps'  Estate  (1906)  145  Mich.  605,  108  N.  W.  1079,  the  plain- 
tiff, by  mistake,  paid  taxes  erroneously  assessed  to  him  upon  real  estate  owned 
by  the  decedent.  Held,  plaintiff  could  not  recover  from  decedent's  estate 
the  amount  of  such  payment,  as  the  payment  was  voluntary.  "It  may  be  that 
in  equity  the  plaintiff  should  be  reimbursed  for  the  amount  so  paid." 

See,  also,  Kershaw  County  v.  Town  of  Camden  (1890)  33  S.  C.  140,  11  S.  E. 
635;  Hotchkiss  v.  Williams  (1S99)  44  App.  Div.  615,  60  N.  Y.  Supp.  168;  City 
of  Chicago  v.  C.  &  N.  W.  Ry.  Co.  (1900)  186  111.  300.  57  N.  E.  795. 

It  is  generally  held  that  a  subsequent  promise  of  reimbursement  by  the  one 
whose  debt  has  been  paid  is  without  consideration  and  unenforceable.  East- 
wood V.  Kenvon  (1S40)  11  Ad.  &  El.  436;  IVIassachusetts  Mutual  Life  Ins.  Co. 
v.  Green  (1904)  185  Mass.  306,  70  N.  E.  202;  Thomson  v.  Thomson  (1902)  76 
App.  Div.  178,  78  N.  Y.  Supp.  3S9.  Contra:  Wright  v.  Farmers'  Nat.  Bank 
(1903)  31  Tex.  Civ.  App.  406,  72  S.  W.  103 ;  also  cases  cited  in  note  in  53  L. 
R.   A.  372. 

Nor  can  the  one  who  has  voluntarily  paid  another's  debt  recover  from  the 
creditor.  "Nothing  is  clearer  than  that,  where  A.  volmitarily  pays  to  B.  a 
debt  which  C.  owes,  A.  cannot  afterwards,  upon  his  failure  to  collect  from 
C.  what  he  has  advanced  or  paid  for  him,  recover  back  from  B.  the  amount 
paid  him  in  satisfaction  of  his  debt  against  C."  Traders'  &  Truckers'  Bank 
v.  Black  (1908)  108  Va.  59,  66,  60  S.  E.  743. 

If  a  payment  is  made  on  behalf  of  the  debtor  and  is  subsequently  ratified 
by  him,  he  must  make  reimbursement.  Ross  v.  Pearson  (1852)  21  Ala.  473 ; 
Oliver  v.  Camp  (Ala.  1913)  62  South.  469;  Wolff  v.  Matthews  (1S90)  39  Mo. 
App.  376 ;  Neely  v.  Joues  (1880)  16  W.  Va.  625,  37  Am.  Rep.  794.  See,  also, 
Monast  v.  Marchaut  (R.  I.  1909)  72  Atl.  820. 

In  Rogs  V.  Pearson,  supra,  the  court  said :  "Although  it  is  true  that  money 
paid  voluntarily  cannot  be  recovered  back,  yet,  if  the  payment  is  sanctioned 
and  adopted  by  the  debtor,  he  by  that  act  makes  the  payor  his  agent,  and  the 
law  then  implies  a  promise  to  refund." 

As  to  the  effect  of  such  a  payment  as  that  made  in  the  present  case  upon  a 
subsequent  action  by  the  creditor  against  the  debtor,  see  Williston's  Wald's 
Pollock  on  Contracts,  840-842 ;    23  L.  R,  A.  120,  note. 


Sec.  2)  INTENTION  TO   CLAIM   COMPENSATION  447 

against  the  appellee  board  for  these  expenditures.  The  circuit  court 
sustained  a  demurrer  to  their  petition,  and  they  appeal. 

The  circuit  court  was  right.  The  teachers,  in  contracting  and  paying 
these  obligations,  were  volunteers.  No  man,  entirely  of  his  own  voli- 
tion, can  make  another  his  debtor.  The  school  board  could  have  been 
required  by  mandamus,  at  the  suit  of  any  proper  party,  to  furnish  a 
place  for  tlie  conduct  of  the  school.  The  teachers  had  no  right  to  sup- 
ply it  themselves,  and  then  recover  the  rent.  They  had  their  teaching 
contract;  and  if  the  board  made  it  impossible  for  them  to  teach,  by 
failing  to  furnish  a  place  for  conducting  the  school,  they  had  their 
right  of  action  on  their  contract,  subject  to  the  customary  principles  in- 
volved in  such  cases.  They  adopted  neither  of  these  courses,  but  in- 
stead voluntarily  paid  an  obligation  which  was  not  theirs. 

Judgment  affirmed.^* 


BOSTON  ICE  CO.  v.  POTTER. 

(Supreme  Judicial  Court  of  Massachusetts,  1877.     123  Mass.  2S,  25  Am. 

Rep.  9.) 

Contract  on  an  account  annexed,  for  ice  sold  and  delivered  between 
April  1,  1874,  and  April  1,  1S75.    Answer,  a  general  denial. 

At  the  trial  in  the  superior  court,  before  Wilkinson,  J.,  without  a 
jury,  the  plaintiff  offered  evidence  tending  to  show  the  delivery  of  the 
ice  and  its  acceptance  and  use  by  the  defendant  from  April  1,  1874, 
to  April  1,  1875,  and  that  the  price  claimed  in  the  declaration  was  the 
market  price.  It  appeared  that  the  ice  was  delivered  and  used  at  the 
defendant's  residence  in  Boston,  and  the  amount  left  daily  was  regu- 
lated by  the  orders  received  there  from  the  defendant's  servants ;  that 
the  defendant,  in  1873,  was  supplied  with  ice  by  the  plaintiff,  but,  on 
account  of  some  dissatisfaction  with  the  manner  of  supply,  terminated 
his  contract  with  it ;  that  the  defendant  then  made  a  contract  with  the 
Citizens'  Ice  Company  to  furnish  him  with  ice ;  that  some  time  before 
April,  1874,  the  Citizens'  Ice  Company  sold  its  business  to  the  plaintiff, 
with  the  privilege  of  supplying  ice  to  its  customers.  There  was  some 
evidence  tending  to  show  that  the  plaintiff  gave  notice  of  this  change 
of  business  to  the  defendant,  and  informed  him  of  its  intended  supply 
of  ice  to  him ;  but  this  was  contradicted  on  the  part  of  the  defendant. 

The  judge  found  that  the  defendant  received  no  notice  from  the 
plaintiff  until  after  all  the  ice  had  been  delivered  by  it,  and  that  there 

13  In  Davis  v.  School  District  No.  2  (1844)  24  Me.  349,  the  defendant  voted 
to  lay  out  ten  per  cent,  of  the  school  money  in  repairs  to  the  school  house. 
Plaintiff,  the  district  school  agent,  expended  in  necessary  repairs  a  sum  tniual 
to  twice  the  amount  autliorized  and  hronglit  suit  for  the  excess.  Held  for 
defendant.  The  use  of  the  school  after  the  repairs  were  made  raised  no  im- 
plication of  a  pronuse  to  pay  therefor.  "The  principle  contended  for  would 
oblige  one  to  pay  for  repairs  made  upon  his  buildings  without  his  I'equest  or 
wishes,  or  to  abandon  them  entirely." 


448  BENEFITS   WITHOUT   CONTRACT  (Cll.  4 

was  no  contract  of  sale  between  the  parties  to  this  action  except  what 
was  to  be  implied  from  the  delivery  of  the  ice  by  the  plaintiff  to  the 
defendant  and  its  use  by  him ;  and  ruled  that  the  defendant  had  a  right 
to  assume  that  the  ice  in  question  was  delivered  by  the  Citizens'  Ice 
Company,  and  that  the  plaintiff  could  not  maintain  this  action.  The 
plaintiff'  alleged  exceptions. 

Endicott,  J.  To  entitle  the  plaintiff  to  recover,  it  must  show  some 
contract  with  the  defendant.  There  was  no  express  contract,  and  upon 
the  facts  stated  no  contract  is  to  be  implied.  The  defendant  had  taken 
ice  from  the  plaintiff  in  1873,  but,  on  account  of  some  dissatisfaction 
with  the  manner  of  supply,  he  terminated  his  contract,  and  made  a  con- 
tract for  his  supply  with  the  Citizens'  Ice  Company.  The  plaintiff 
afterward  delivered  ice  to  the  defendant  for  one  year  without  notifying 
the  defendant,  as  the  presiding  judge  has  found,  that  it  had  bought 
out  the  business  of  the  Citizens'  Ice  Company,  until  after  the  delivery 
and  consumption  of  the  ice. 

The  presiding  judge  has  decided  that  the  defendant  had  a  right  to 
assume  that  the  ice  in  question  was  delivered  by  the  Citizens'  Ice  Com- 
pany, and  has  thereby  necessarily  found  that  the  defendant's  contract 
with  that  company  covered  the  time  of  the  delivery  of  the  ice. 

There  was  no  privity  of  contract  established  between  the  plaintiff 
and  defendant,  and  without  such  privity  the  possession  and  use  of  the 
property  will  not  support  an  impHed  assumpsit.  Hills  v.  Snell,  104 
Mass.  173,  177,  6  Am.  Rep.  216.  And  no  presumption  of  assent  can  be 
implied  from  the  reception  and  use  of  the  ice,  because  the  defendant 
had  no  knowledge  that  it  was  furnished  by  the  plaintiff,  but  supposed 
that  he  received  it  under  the  contract  made  with  the  Citizens'  Ice  Com- 
pany.   Of  this  change  he  was  entitled  to  be  informed. 

A  party  has  a  right  to  select  and  determine  with  whom  he  will  con- 
tract, and  cannot  have  another  person  thrust  upon  him  without  his 
consent.  It  may  be  of  importance  to  him  who  performs  the  contract, 
as  when  he  contracts  with  another  to  paint  a  picture,  or  write  a  book, 
or  furnish  articles  of  a  particular  kind,  or  when  he  relies  upon  the 
character  or  qualities  of  an  individual,  or  has,  as  in  this  case,  reasons 
why  he  does  not  wish  to  deal  with  a  particular  party.  In  all  these 
cases,  as  he  may  contract  with  whom  he  pleases,  the  sufficiency  of  his 
reasons  for  so  doing  cannot  be  inquired  into.  If  the  defendant,  before 
receiving  the  ice,  or  during  its  delivery,  had  received  notice  of  the 
change,  and  that  the  Citizens'  Ice  Company  could  no  longer  perform 
its  contract  with  him,  it  would  then  have  been  his  undoubted  right  to 
have  rescinded  the  contract  and  to  decline  to  have  it  executed  by  the 
plaintiff.  But  this  he  was  unable  to  do,  because  the  plaintiff  failed  to 
inform  him  of  that  which  he  had  a  right  to  know.  Orcutt  v.  Nelson,  1 
Gray,  536,  542 ;  Winchester  v.  Howard,  97  Mass.  303,  93  Am.  Dec.  93 , 
Hardman  v.  Booth,  1  Hurl.  &  C.  803 ;  Humble  v.  Hunter,  12  Q.  B. 
Div.  310;  Robson  v.  Drummond,  2  Barn,  &  Adol.  303.  If  he  had  re- 
ceived notice  and  continued  to  take  the  ice  as  delivered,  a  contract 


Sec.  2}  INTENTION   TO   CLAIM   COMPENSATION  449 

would  be  implied.^*  Mudge  v.  Oliver,  1  Allen,  74;  Orcutt  v.  Nelson, 
ubi  supra ;  Mitchell  v.  Lapage,  Holt,  N.  P.  253, 

There  are  two  English  cases  very  similar  to  the  case  at  bar.  In 
Schmaling  v.  Thomlinson,  6  Taunt,  147,  a  firm  was  employed  by  the 
defendants  to  transport  goods  to  a  foreign  market,  and  transferred  the 
entire  employment  to  the  plaintiff,  who  performed  it  without  the  privity 
of  the  defendants,  and  it  was  held  that  he  could  not  recover  compensa- 
tion for  his  services  from  the  defendants. 

The  case  of  Boulton  v.  Jones,  2  Hurl.  &  N.  564,  was  cited  by  both 
parties  at  the  argument.  There  the  defendant,  who  had  been  in  the 
habit  of  dealing  with  one  Brocklehurst,  sent  a  written  order  to  him  for 
goods.  The  plaintiff,  who  had  on  the  same  day  bought  out  the  busi- 
ness of  Brocklehurst,  executed  the  order  without  giving  the  defendant 
notice  that  the  goods  were  supplied  by  him  and  not  by  Brocklehurst. 
And  it  was  held  that  the  plaintiff  could  not  maintain  an  action  for  the 
price  of  the  goods  against  the  defendant.  It  is  said  in  that  case  that 
the  defendant  had  a  right  of  set-off  against  Brocklehurst,  with  whom 
he  had  a  running  account,  and  that  is  alluded  to  in  the  opinion  of 
Baron  Bramwell,  though  the  other  judges  do  not  mention  it. 

The  fact  that  a  defendant  in  a  particular  case  has  a  claim  in  set-off 
against  the  original  contracting  party  shows  clearly  the  injustice  of 
forcing  another  person  upon  him  to  execute  the  contract  without  his 
consent,  against  whom  his  set-off  would  not  be  available.  But  the  ac- 
tual existence  of  the  claim  in  set-off  cannot  be  a  test  to  determine  that 
there  is  no  implied  assumpsit  or  privity  between  the  parties.  Nor  can 
the  non-existence  of  a  set-off  raise  an  implied  assumpsit.  If  there  is 
such  a  set-off,  it  is  sufficient  to  state  that,  as  a  reason  why  the  defend- 
ant should  prevail ;  but  it  by  no  means  follows  that  because  it  does  not 
exist  the  plaintiff  can  maintain  his  action.  The  right  to  maintain  an 
action  can  never  depend  upon  whether  the  defendant  has  or  has  not  a 
defence  to  it. 

The  implied  assumpsit  arises  upon  the  dealings  between  the  parties 
to  the  action,  and  cannot  arise  upon  the  dealings  between  the  defendant 
and  the  original  contractor,  to  which  the  plaintiff  was  not  a  party.  At 
the  same  time,  the  fact  that  the  right  of  set-off  against  the  original  con- 
tractor could  not,  under  any  circumstances,  be  availed  of  in  an  action 
brought  upon  the  contract  by  the  person  to  whom  it  was  transferred 
and  who  executed  it,  shows  that  there  is  no  privity  between  the  parties 
in  regard  to  the  subject  matter  of  this  action. 

14  In  Barnes  v.  Shoemaker  (1SS7)  112  Ind.  512,  14  N.  E.  3G7,  the  court  said: 
"If  the  person  ordering  the  goods  receives  notice,  before  the  goods  are  appro- 
priated or  converted,  that  they  have  been  furnished  by  another,  and  is  also 
notified  that  they  are  furnished  upon  such  terms  as  import  that  tlie  person 
supplying  the  goods  contemplated  a  sale  upon  terms  stated,  and  the  person 
who  sent  the  order  afterwards  receives  and  appropriates  them.  ]w  thereby 
assents  to  and  ratifies  the  filling  of  the  order,  and  such  assent  and  ratification 
relate  back,  and  give  the  order  the  same  effect  as  if  it  had  been  originally  given 
to  the  preson  who  filled  it." 

Thubs.Quapi  Co  NT. — 1J9 


450  BENEFITS   WITHOUT   CONTRACT  (Cll.  4 

It  is,  therefore,  immaterial  that  the  defendant  had  no  claim  in  set-off 
against  tlie  Citizens'  Ice  Company. 

We  are  not  called  upon  to  determine  what  other  remedy  the  plaintiff 
has,  or  what  would  be  the  rights  of  the  parties  if  the  ice  were  now  in 
existence.    Exceptions  overruled.^* 


CONCORD  COAL  CO.  v.  FERRTN. 

(Supreme  Court  of  New  Hampshire,  1001.     71  N.  H.  33,  51  Atl.  2S3,  93 

Am.  St.  Rep.  496.) 

Exceptions  from  Merrimack  county. 

Action  by  the  Concord  Coal  Company  against  one  Ferrin  and  an- 
other. Verdict  rendered  for  defendants,  and  case  transferred  on  plain- 
tiff's exceptions. 

One  Bean,  being  indebted  to  the  defendants  for  labor  upon  a  model 
of  an  appliance  invented  by  him,  and  having  been  requested  to  make 
payment,  informed  the  defendants  that  one  of  the  plaintiffs.  Day,  was 
backing  him,  and  that  he  would  get  the  plaintiff  company  to  furnish 
a  ton  of  coal  for  application  as  payment  upon  his  indebtedness ;  and 
the  defendants  agreed  to  accept  a  ton  of  coal  in  part  payment.  Bean 
thereupon  informed  the  plaintiffs  that  the  defendants  wanted  a  ton  of 
coal,  without  saying  anything  about  the  arrangement  he  had  made  with 
them.  The  coal  was  delivered  to  the  defendants  and  used  by  them  in 
their  business.  The  plaintiffs  charged  the  coal  to  the  defendants.  De- 
mand for  payment  was  made  upon  the  defendants  by  the  plaintiffs  by 
letter  within  six  months  after  the  coal  was  delivered,  and  again  after 
about  a  year.  An  oral  demand  was  subsequently  made  on  several  oc- 
casions, and  the  defendants  on  each  occasion  denied  their  liability.  The 
defendants  credited  the  coal  to  Bean's  account.  Day  was  not  in  fact 
backing  Bean,  and  had  given  him  no  authority  to  bind  him  in  any  way. 
The  defendants  knew  that  the  coal  came  from  the  Concord  Coal  Com- 
pany, and  that  the  plaintiffs  were  a  firm  composed  of  Day  and  one 
Emmons.  Both  parties  acted  in  entire  good  faith,  but  were  deceived  by 
Bean.  The  court  found  a  verdict  for  the  defendants,  and  the  plaintiffs 
excepted. 

Parsons,  J.  Both  parties  understood  that  upon  the  delivery  of 
the  coal  the  title  passed  to  the  defendants.  Their  misunderstanding 
related  solely  to  the  mode  of  payment.  The  plaintiffs  understood  the 
defendants  were  to  pay  them  the  customary  price,  and  charged  the 
coal  to  them.  The  defendants  understood  the  coal  was  delivered  as  a 
payment  upon  Bean's  indebtedness  to  them,  and  credited  it  upon  his 
account.  The  plaintiffs  understood  their  delivery  was  of  coal  to  be 
paid  for  in  cash  in  the  ordinary  course  of  business.  The  defendants 
understood  their  acceptance  was  of  coal  for  which  they  had  already 

16  See  7  Columbia  Law  Review,  32. 


Sec.  2)  INTENTION   TO   CLAIM   COMPENSATION  451 

paid.  To  this  branch  of  a  contract  of  sale  the  parties  did  not  agree 
in  fact,  either  in  terms  or  by  inference.  Hence  there  was  no  contract 
in  fact,  express  or  tacit  (Sceva  v.  True,  53  N.  H.  627,  632),  because  of 
the  mutual  mistake  as  to  payment.  As  there  was  no  contract  of  sale, 
in  the  absence  of  any  estoppel,  upon  discovery  of  tlie  mistake  the  plain- 
tiffs might  have  retaken  their  coal  if  it  remained  distinguishable  from 
other  coal  of  the  defendants,  or  the  defendants  might  have  required  the 
plaintiffs  to  remove  it.  As  the  plaintiffs  had  no  right  of  action  by  vir- 
tue of  the  mistaken  acceptance  of  tlie  coal,  they  cannot  now  recover 
except  by  virtue  of  some  further  facts.  The  additional  facts  stated 
are  that  the  defendants  used  the  coal  in  their  business,  and  the  plain- 
tiffs, within  six  months  and  subsequently,  made  sundry  demands  for 
payment.  It  does  not  appear  that  the  plaintiffs  ever  demanded  the 
return  of  the  coal;  but,  on  the  contrary,  they  appear  to  have  uniformly 
insisted  upon  the  contract  as  tliey  understood  it.  In  the  original  trans- 
action both  parties  acted  in  entire  good  faith,  but  were  deceived  by 
Bean.  Upon  these  facts  the  trial  court  found  a  verdict  for  the  defend- 
ants. This  verdict  must  stand  unless  the  specific  facts  found  are  in- 
consistent therewith  as  matter  of  law. 

The  plaintiffs'  claim  is  that  the  defendants  by  their  use  of  the  coal 
charged  themselves  with  the  legal  duty  of  paying  for  it  in  accordance 
with  the  plaintiffs'  understanding  of  the  contract,  rather  than  their 
own,  or  at  least  of  paying  anew  in  money  the  usual  price  or  value  of 
the  coal.  The  question  is,  how  ought  the  coal  to  be  paid  for, — in  accord 
with  the  understanding  of  the  plaintiffs,  or  with  that  of  the  defendants? 
It  is  manifest  that  if  the  plaintiff's  had  accompanied  the  delivery  of  the 
coal  with  an  invoice  charging  the  defendants  with  the  price,  or  had 
informed  them  it  was  delivered  on  their  credit,  or  if  before  delivery 
the  plaintiffs  had  inquired  of  the  defendants  as  to  Bean's  authority,  or 
if  the  defendants,  before  accepting  the  coal,  had  informed  the  plain- 
tiffs that  they  accepted  it  only  for  application  on  Bean's  debt,  the  con- 
troversy would  have  been  avoided.  Whether,  under  all  the  circum- 
stances, the  defendants  accepted  or  the  plaintiffs  delivered  the  coal 
under  such  circumstances  that  either  of  them  are  now  estopped  to  set 
up  their  understanding  of  the  transaction,  is  mainly  a  question  of  fact. 
If  it  were  found  that  the  defendants  were  thus  in  default,  they  would 
be  bound  in  contract  by  estoppel  (Sceva  v.  True,  supra) ;  while,  if  the 
plaintiffs  were  considered  to  be  similarly  estopped,  the  case  would  also 
be  determined  upon  that  ground.  As  the  general  verdict  is  found  for 
the  defendants,  It  must  be  understood  at  least  to  embrace  a  finding  that 
no  estoppel  exists  against  the  defendants.  Bank  v.  Church,  69  N.  H. 
582,  44  Atl.  105. 

The  facts  disclose  no  contract  in  fact,  express,  tacit,  by  estoppel,  or 
implied  in  fact ;  and  the  sole  remaining  question  is  whether  the  facts 
establish  a  contract  implied  in  law,  or  a  contract  of  legal  duty,  some- 
times called  a  quasi  contract.  Sceva  v.  True,  supra.  A  promise  to  pay 
what  it  is  one's  legal  duty  to  pay  is  implied  by  law.     Bixby  v.  Moor, 


452  BENEFITS   WITHOUT   CONTRACT  (Ch.  4 

51  N.  H.  402-404;  Eastman  v.  Clark,  53  N!  H.  276,  280,  16  Am.  Rep. 
192;  Sceva  v.  True,  53  N.  H.  627,  631-633;  Water  Co.  v.  Metcalf,  63 
N.  H.  427;  Gage  v.  Gage,  66  N.  H.  282,  283,  29  Atl.  543,  28  L.  R.  A. 
829;  Clark  v.  Sanborn,  68  N.  H.  411,  36  Atl.  14.  In  this  case  the  legal 
duty  is  wanting,  unless  it  can  be  predicated  upon  the  mere  possession 
and  use  of  property.  The  mere  fact  of  benefit  received  is  insufficient 
to  establish  the  legal  duty  of  payment.  Clark  v.  Sanborn,  supra,  is 
precisely  in  point.  There  the  plaintiff  was  unable  to  recover  for  serv- 
ices valuable  to  the  defendants,  rendered  under  the  expectation  that 
they  would  be  paid  for,  for  the  reason  that  the  defendants  did  not  ac- 
cept the  services  with  the  understanding  that  they  were  to  make  pay- 
ment. In  the  absence  of  privity  of  contract,  the  mere  possession  and 
use  of  property  will  not  imply  a  promise  to  pay  for  it.  Ice  Co.  v.  Pot- 
ter, 123  Mass.  28,  25  Am.  Rep.  9;  Hills  v.  Snell,  104  Mass.  173,  177,  6 
Am.  Rep.  216;  Bouhon  v.  Jones,  2  Hurl.  &  N.  564;  Benj.  Sales,  ,§§ 
59,  416.  It  is  contended  that  the  plaintiffs  can  recover  because  other- 
wise the  defendants  would  be  unjustly  enriched  at  the  plaintiffs'  ex- 
pense. But  tliat  fact  is  not  found.  Both  parties  trusted  and  were  de- 
ceived by  Bean.  If  the  plaintiffs  cannot  recover  of  the  defendants  for 
the  coal,  they  have  a  claim  against  Bean  for  its  value;  while,  if  the 
defendants  were  obliged  to  pay  for  the  coal,  they  would  also  have  a 
claim  against  Bean  for  the  same  amount.  It  may  be  assumed  that 
Bean  is  worthless.  But  there  is  no  equitable  reason  why  the  plaintiffs 
rather  than  the  defendants  should  be  released  from  the  consequences 
of  their  trust  in  Bean.  In  view  of  the  inference  of  freedom  from  fault 
which  the  general  verdict  finds  for  the  defendants,  the  defendants' 
equity  is  at  least  equal  with  that  of  the  plaintiffs. 

The  fact,  if  it  were  a  fact,  as  Bean  represented  to  the  defendants, 
that  only  one  of  the  two  partners  of  the  Concord  Coal  Company  was 
backing  him,  presents  no  legal  reason  why  Bean  could  not,  as  he  repre- 
sented he  could,  get  the  Concord  Coal  Company  to  furnish  a  ton  of 
ooal  for  application  upon  his  account,  or  why  they  could  not  or  would 
not  do  so.  What  Bean  said  and  the  defendants'  knowledge  of  tlie  com- 
position of  the  plaintiffs'  firm  were  evidentiary  facts  bearing  upon  the 
question  concluded  by  the  general  verdict, — whether  the  defendants 
were  in  fault  in  accepting  the  coal  without  inquiry.  As  no  facts  are 
found  inconsistent  with  the  general  verdict  found  for  the  defendants, 
the  verdict  cannot  be  disturbed. 

Exceptions  overruled.^® 

16  Compare  the  cases  on  benefits  conferred  under  mistake  as  to  the  existence 
of  a  contract  between  the  parties,  page  119  et  seq.,  supra. 

In  Rohr  v.  Balier  (1SS6)  13  Or.  350,  10  Pac.  627,  plaintiff  and  defendant 
were  contractors  engaged  in  excavating  earth  for  a  street  in  the  city  of  Port- 
land, and  acting  under  separate  contracts.  Plaintiff  by  mistake  and  without 
defendant's  knowledge  excavated  a  quantity  of  earth  or  ground  covered  by 
defendant's  contract,  and  brought  action  to  recover  for  the  actual  cost  of  the 
work  done  by  him,  and  from  which  he  claimed  Baker  received  a  benefit.  The 
court  denied  relieif,  saying:  "The  case  presented  is  that  of  a  stranger  doing 
work  on  Baker's  contract  without  Baker's  consent.     The  case,  in  principle. 


Sec.  2)  INTENTION   TO   CLAIM   COMPENSATION  453 

BARTHOLOMEW  v.  JACKSON. 

(Supreme  Court  of  New  York,  1822.     20  Johns  28,  11  Am.  Dec.  237.) 

In  error,  on  certiorari  to  a  justice's  court.  Jackson  sued  Barthol- 
omew before  a  justice,  for  work  and  labor,  &c.  B.  pleaded  non  as- 
sumpsit. It  appeared  in  evidence,  that  Jackson  owned  a  wheat  stub- 
ble-field, in  which  B.  had  a  stack  of  wheat,  which  he  had  promised  to 
remove  in  due  season  for  preparing  the  ground  for  a  fall  crop.  The 
time  for  its  removal  having  arrived,  J.  sent  a  message  to  B.,  which, 
in  his  absence,  was  delivered  to  his  family,  requesting  the  immediate 
removal  of  the  stack  of  wheat,  as  he  wished,  on  the  next  day,  to  burn 
the  stubble  on  the  field.  The  sons  of  B.  answered,  that  they  would 
remove  the  stack  by  10  o'clock  the  next  morning.  J.  waited  until 
that  hour,  and  then  set  fire  to  the  stubble,  in  a  remote  part  of  the 
field.  The  fire  spreading  rapidly,  and  threatening  to  burn  the  stack  of 
wheat,  and  J.,  finding  that  B.  and  his  sons  neglected  to  remove  the 
stack,  set  to  work  and  removed  it  himself,  so  as  to  secure  it  for  B. ; 
and  he  claimed  to  recover  damages  for  the  work  and  labor  in  its  re- 
moval. The  jury  gave  a  verdict  for  the  plaintiff  for  50  cents,  on  which 
the  justice  gave  judgment,  with  costs. 

Platt,  J.,  delivered  the  opinion  of  the  court.  I  should  be  very  glad 
to  affirm  this  judgment;  for  though  the  plaintiff  was  not  legally  en- 
titled to  sue  for  damages,  yet  to  bring  a  certiorari  on  such  a  judgment 
was  most  unworthy.  The  plaintiff  performed  the  service  without  the 
privity  or  request  of  the  defendant ;  and  there  was,  in  fact,  no  promise, 
express  or  implied.  If  a  man  humanely  bestows  his  labor,  and  even 
risks  his  life,  in  voluntarily  aiding  to  preserve  his  neighbor's  house 
from  destruction  by  fire,  the  law  considers  the  service  rendered  as 
gratuitous,  and  it,  therefore,  forms  no  ground  of  action.  The  judg- 
ment must  be  reversed. 

Judgment  reversed.^' 

is  the  same  as  though  he  had  ploughed  Baker's  field,  or  done  work  on  his 
house,  under  similar  circumstances." 

In  Forbis  v.  Inman  (1892)  23  Or.  68,  31  Pac.  204,  the  court  held  that  a  sub- 
sequent express  promise  to  reimburse  plaintiff  under  circumstances  similar 
to  those  in  Rohr  v.  Baker,  supra,  was  supported  by  a  sufficient  consideration 
to  sustain  an  action.  Accord  :  Drake  v.  Bell  (1S99)  26  INIisc.  Rei).  237,  55  N. 
Y.  Supp.  945  (but  see  Thomson  v.  Thomson  [1902J  76  App.  Div.  178,  78  N.  Y. 
Supp.  389);  Edson  v.  Poppe  (1910)  24  S.  D.  466,  124  N.  W.  441,  26  L.  R.  A. 
(N..  S.)  534.  See,  also,  Muir  v.  Kane  (1909)  55  Wash.  131,  104  Pac.  153.  26  L.  R.  A. 
(N.  S.)  519,  19  Ann.  Cas.  1180  (with  note  on  "Moral  Obligation  as  Consideration 
for  an  Express  Promise").  Contra:  Sharp  v.  Hoopes  (1906)  74  N.  J.  Law,  191, 
64  Atl.  989:    Conant  v.  Evans  (1909)  202  Mass.  34.  88  N.  E.  4.3& 

17  See  also  Glenn  v.  Savage  (1887)  14  Or.  567,  577,  13  Pac.  442. 

In  Merritt  v.  American  Dock  &  Ti-ust  Co.  (1891)  13  N.  Y.  Supp.  234,  the 
plaintiff  was  the  owner  of  certain  steam  boats  used  for  the  purpose  of  aiding 
disabled  vessels  and  extinguishing  tires.  The  captains  of  two  of  such  vessels 
seeing  defendant's  warehouse  in  flames  proceeded  thereto  and  endeavored  to 
extiniguish  the  fire.    There  was  no  express  request  from  defendant  to  render 


454  BENEFITS  WITHOUT   CONTRACT  (Ch.  4 

REEDER  V.  ANDERSON'S  ADM'RS. 

(Court  of  Appeals  of  Kentucky,  1S36.     4  Dana,  193.) 

Chiei^  Justice  Robertson  delivered  the  opinion  of  the  Court. 

The  only  question  to  be,  considered  in  this  case,  is  whether  the  law 
will  imply  a  promise  by  the  owner  of  a  runaway  slave,  to  pay  a  rea- 
sonable compensation  to  a  stranger,  for  a  voluntary  apprehension 
and  restitution  of  the  fugitive.  And,  though  such  friendly  offices  are 
frequently  those  only  of  good  neighborship,  which  should  not  be 
influenced  by  mercenary  motives  or  expectations — nevertheless,  it 
seems  to  us  that,  there  is  an  implied  request  from  the  owner,  to  all 
other  persons  to  endeavor  to  secure  to  him  lost  property  which  he 
is  anxious  to  retrieve;  and  that,  therefore,  there  should  be  an  im- 
plied undertaking  to  (at  least)  indemnify  any  person  who  shall,  by  the 
expenditure  of  time  or  money,  contribute  to  a  reclamation  of  the 
lost  property. 

Whether,  according  to  the  proof,  there  was  any  such  claim  to 
reparation  or  indemnity  in  this  case,  is  very  doubtful:  but,  because 
it  is  doubtful,  the  Circuit  Court  erred  in  instructing  the  jury  to  find  as 
in  case  of  a  nonsuit. 

And  therefore,  it  is  considered  by  the  Court  that,  the  judgment  be 
reversed,  the  verdict  set  aside,  and  the  cause  remanded  for  a  new 
trial. 


CHASE  V.  CORCORAN. 
(Supreme  Judicial  Court  of  Massachusetts,  1871.     106  Mass.  286.) 

Cray,  J.^'  The  evidence  introduced  at  the  trial  tended  to  prove 
the  following  facts:  The  plaintiff,  while  engaged  with  his  own  boats 
in  the  Mystic  river,  within  the  ebb  and  flow  of  the  tide,  found  the 
defendant's  boat  adrift,  with  holes  in  the  bottom  and  the  keel  nearly 
demolished,  and  in  danger  of  sinking  or  being  crushed  between  the 
plaintiff's  boats  and  the  piles  of  a  bridge,  unless  the  plaintiff  had 
saved  it.  The  plaintiff  secured  the  boat,  attached  a  rope  to  it,  towed  it 
ashore,  fastened  it  to  a  post,  and  after  putting  up  notices  in  public 

such  service,  and  towards  evenin?  one  of  the  officers  of  the  defendant  request- 
ed that  plaintiff's  boats  be  withdrawn.  During  the  time  that  plaintiff's 
boats  were  present  and  assisting  in  putting  out  the  tire,  one  or  more  officers 
of  the  defendant  companj'  were  present.  The  court  held  that  the  fact  that 
defendant's  officers  stood  by  and  received  this  assistance  without  any  warn- 
ing to  plaintiff  that  they  declined  it,  and  would  not  compensate  him  for  it, 
carried  with  it  no  implication  that  defendant  expected  to  compensate  plain- 
tiff, since  the  defendant  being  heavily  insured,  and  the  warehouse  being  full 
of  goods  belonging  to  others,  there  was  no  reason  why  defendant's  officers 
should  not  have  supposed  that  the  boats  had  been  sent  by  one  of  the  other 
parties  interested  in  the  property. 

18  A  portion  of  the  opinion  is  omitted. 


Sec.  2)  INTENTION  TO   CLAIM   COMPENSATION  455 

places  in  the  nearest  town  and  making  other  inquiries,  and  no  owner 
appearing,  took  it  to  his  own  bam,  stowed  it  there  for  two  winters,  and 
during  the  intervening  summer  made  repairs  (which  were  necessary 
to  preserve  the  boat),  and  for  its  better  preservation  put  it  in  the  wa- 
ter, fastened  to  a  wharf,  and  directed  the  wharfinger  to  dehver  it  to 
any  one  who  should  prove  ownership  and  pay  the  plaintiff's  expenses 
about  it.  The  defendant  afterwards  claimed  the  boat;  the  plaintiff 
refused  to  deliver  it  unless  the  defendant  paid  him  the  expenses  of 
taking  care  of  it;  and  the  defendant  then  took  the  boat  by  a  writ  of 
replevin,  without  paying  the  plaintiff  anything.  This  action  is  brought 
to  recover  money  paid  by  the  plaintiff  for  moving  and  repairing  the 
boat,  and  compensation  for  his  own  care  and  trouble  in  keeping  and 
repairing  the  same,  amounting  to  $26  in  all. 

The  plaintiff  testified,  without  objection,  that  the  boat,  when  found 
by  him,  was  worth  five  dollars.  He  was  then  asked  by  his  counsel, 
what,  when  he  found  it,  he  considered  it  worth.  This  evidence  was 
properly  rejected  as  immaterial. 

The  plaintiff  requested  the  chief  justice  of  the  superior  court  to 
rule  that  the  boat  was  not  lost  goods,  within  the  sense  of  Gen.  St.  c.  79. 
But  the  learned  judge  refused  so  to  rule,  and  ruled  that  upon  all  the 
evidence  the  plaintiff  could  not  maintain  his  action,  and  directed  a  ver- 
dict for  the  defendant.  We  are  of  opinion  that  this  was  erroneous. 
There   is  no  statute  of  the   commonwealth   applicable   to  this   case. 

:^      *      * 

The  claim  of  the  plaintiff  is  therefore  to  be  regulated  by  the  com- 
mon law.  It  is  not  a  claim  for  salvage  ^*  for  saving  the  boat  when 
adrift  and  in  danger  on  tide  water,  and  does  not  present  the  question 
whether  the  plaintiff  had  any  lien  upon  the  boat,  or  could  recover 
for  salvage  services  in  an  action  at  common  law.  His  claim  is  for 
the  reasonable  expenses  of  keeping  and  repairing  the  boat  after  he  had 
brought  it  to  shore ;  and  the  single  question  is  whether  a  promise  is  to 
be  implied  by  law  from  the  owner  of  a  boat,  upon  taking  it  from  a  per- 
son who  has  found  it  adrift  on  tide  water  and  brought  it  to  shore,  to 
pay  him  for  the  necessary  expenses  of  preserving  the  boat  while  in  his 
possession.  We  are  of  opinion  that  such  a  promise  is  to  be  implied. 
The  plaintiff,  as  the  finder  of  the  boat,  had  the  lawful  possession  of  it, 
and  the  right  to  do  what  was  necessary  for  its  preservation.  Whatever 
might  have  been  the  liability  of  the  owner  if  he  had  chosen  to  let  the 
finder  retain  the  boat,  by  taking  it  from  him  he  made  himself  liable 

19  Salvage. — The  principle  of  salvage  in  admiralty  law  is  a  striking  ex- 
ample of  quasi  contractual  liability.  8alvafie  lias  be«u  delinod  as  "the  com- 
pensation that  is  to  be  made  to  other  persons,  by  whoso  assistance  a  ship  or 
its  loading  may  be  saved  from  impcndinig  peril,  or  recovered  alter  actual  loss." 
Abbott  on  Shipping,  c.  Ill,  §  1.  While  the  salvor  has  a  lien  on  the  shij)  or 
goods  saved  for  his  services  as  well  as  for  his  expenses  (Id.  c.  II),  a  finder 
of  goods  on  land  has  at  common  law  no  lien  for  his  expenses,  nor  for  a  reward 
for  his  services,  unless  a  specific  reward  has  been  offered.  Wood  v.  Pierson 
(1881)  45  Mich.  313,  7  N.  W.  SS8. 


456  BENEFITS   WITHOUT   CONTRACT  (Cll.  4 

to  pay  the  reasonable  expenses  incurred  in  keeping  and  repairing  it. 
Nicholson  v.  Chapman,  2  H.  Bl.  254,  258,  and  note ;  Aniory  v.  Flyn, 
10  Johns.  (N.  Y.)  102,  6  Am.  Dec.  316;  Tome  v.  Four  Cribs  of  Lum- 
ber, Taney,  533,  547,  Fed.  Cas.  No.  14,083 ;  3  Dane,  Abr.  143 ;  Story, 
Bailm.  §§  121a,  621a;  2  Kent,  Comm.  (6th  Ed.)  356;  1  Domat,  pt. 
1,  lib.  2,  tit.  9,  art.  2;  Doct.  &  Stud.  c.  51;  Preston  v.  Neale,  12 
Gray,  222. 

Exceptions  sustained.^" 

2  0  See  Nicholson  v.  Chapman  (1793)  2  H.  Bl.  254;  Sheldon  v.  Sherman 
(1864)  42  Barb.  (N.  T.)  368  (affirmed,  42  N,  Y.  484,  1  Am.  Rep.  569) ;  Watts  v. 
Ward  (1854)  1  Or.  87,  62  Am.  Dec.  299. 

"The  general  principle  is,  beyond  all  question,  that  work  and  labour  done 
or  money  expended  by  one  man  to  presers^e  or  benefit  the  property  of  another 
do  not  according  to  English  law  create  any  lien  upon  the  property  saved  or 
benefited,  nor  even,  if  standing  alone,  create  any  obligation  to  repay  the  ex- 
penditure. Inabilities  are  not  to  be  forced  upon  people  behind  their  backs 
any  more  than  you  can  confer  a  benefit  upon  a  man  against  his  will.  There  is 
an  exception  to  this  proposition  in  the  maritime  law.  I  mention  it  because 
the  word  "salvage"  has  been  used  from  time  to  time  throughout  the  argument, 
and  some  analogy  is  sought  to  be  established  between  salvage  and  the  right 
claimed  by  the  Respondents.  With  regard  to  salvage,  general  average,  and 
contribution,  the  maritime  law  differs  from  the  common  law.  That  has  been 
so  from  the  time  the  Roman  law  downwards.  The  maritime  law,  for  the  pur- 
poses of  public  policy  and  for  the  advantage  of  trade,  imposes  in  these  cases 
a  liability  upon  the  thing  saved,  a  liability  which  is  a  special  consequence 
arising  out  of  the  character  of  mercantile  enterprises,  the  nature  of  sea  perils, 
and  the  fact  that  the  thing  saved  was  saved  under  great  stress  and  exceptional 
circumstances.  No  similar  doctrine  applies  to  things  lost  upon  laud,  nor  to  any- 
thing except  ships  or  goods  in  peril  at  sea.  With  regard  to  ordinai-y  goods 
upon  which  labour  or  money  is  expended  with  a  view  of  saving  them  or  benefiting 
the  o\\Tier,  there  can,  as  it  seems  to  me  according  to  the  common  law  be  only 
one  principle  upon  which  a  claim  for  repayment  can  be  based,  and  that  is 
where  you  can  find  facts  from  which  the  law  will  imply  a  contract  to  repay 
or  to  give  a  lien.  It  is  perfectly  true  that  the  inference  of  an  understanding 
between  the  parties — which  you  may  translate  into  other  language  by  calling 
it  an  implied  contract — ^is  an  inference  which  will  unhesitatingly  be  drawn  in 
cases  where  the  circumstances  plainly  lead  to  the  conclusion  that  the  o^^^ler 
of  the  saved  property  knew  that  the  other  party  was  laying  out  his  money 
in  the  expectation  of  being  repaid.  In  other  words,  you  must  have  circum- 
stances from  which  the  proper  inference  is  that  there  was  a  request  to  per- 
form the  service."  Per  Bowen,  L.  J.,  in  Falcke  v.  Scottish  Imperial  Insurance 
Company  (1886)  L.  R.  34  Ch.  D.  234,  248. 

In  Preston  v.  Neale  (1S5S)  12  Gray  (Mass.)  222,  defendant  quitted  the  prem- 
ises which  he  had  hired  of  the  plaintiff  leaving  behind  him  several  trunks  and 
a  stove.  In  an  action  to  recover  a  charge  for  storage  the  court  said :  "In  the 
present  case  which  we  hold  to  be  in  its  legal  incidents  like  deposits  by  finding 
or  made  by  winds  or  floods,  we  think  the  plaintiff  is  entitled  to  recover  for 
storage  of  the  trunlvs  and  stove,  from  the  time  when  tliey  were  left  in  her 
house,  until  the  time  when  the  defendant  juade  a  demand  on  her  for  them. 
But  as  she,  having  no  lien  on  them,  wrongfully  withheld  them  from  the  de- 
fendant on  his  demand,  she  is  not  entitled  to  compensation  for  subsequent 
storage  during  such  unlawful  detention."  See,  also,  Beckwith  v.  Frisbie 
(1860)  32  Vt.  559 ;  Moline.  Milburn  &  Stoddard  v.  Neville  (1897)  52  Neb,  574. 
72  N.  W.  854. 


Sec.  2)  INTENTION  TO   CLAIM   COMPENSATION  "  457 

MATHIE  V.  HANCOCK. 

(Supreme  Court  of  Vermont,  1906.     78  Vt.  414,  63  Atl.  143.) 

General  assumpsit.  Heard  on  an  agreed  statement  at  the  March 
term,  1905,  Orleans  county;  Tyler,  J.,  presiding.  Judgment  for  the 
defendant.    The  plaintiff  excepted. 

RowELL,  C.  J.  This  is  general  assumpsit.  The  facts,  as  agreed 
upon  by  the  parties,  are  these:  The  defendant  is  administrator  of 
the  estate  of  one  Niles,  which  is  in  process  of  settlement  in  the  pro- 
bate court.  Before  and  at  the  time  of  his  death  Niles  lived  upon  and 
carried  on  the  town  farm  of  the  town  of  Hardwick,  most  of  the 
cows  on  which  belonged  to  the  town.  Immediately  after  Niles'  death, 
the  overseer  of  the  poor,  who  was  also  superintendent  of  the  farm, 
took  possession  of  the  farm  and  the  cows.  For  some  time  before  the 
death  of  Niles  the  plaintiff  made  his  home  with  him  on  the  farm,  and 
was  engaged  in  handling  and  breaking  horses  of  his  own  and  horses 
belonging  to  Niles  and  to  others,  and  was  so  engaged  at  the  time 
of  Niles'  death.  When  the  overseer  took  possession  of  the  farm,  he 
told  the  plaintiff  that  the  town  would  not  care  for  the  intestate's  horses, 
nor  furnish  hay  nor  grain  for  them ;  and  the  plaintiff  fed  them  on 
hay  and  grain  and  exercised  them  until  they  were  taken  possession  of 
by  the  defendant  as  administrator,  which,  as  we  understand  from  the 
briefs,  was  as  soon  as  he  was  appointed  and  qualified  as  such.  A  por- 
tion of  the  feed  so  used  by  the  plaintiff  belonged  to  Niles  at  the  time  of 
his  death,  and  when  that  was  gone  the  plaintiff  furnished  all  the  feed 
for  the  horses.  The  defendant  denies  all  liability,  and  refuses  to  pay 
the  plaintiff  for  said  care  and  feed ;  but,  if  the  plaintiff  is  entitled  to 
recover  therefor,  it  is  agreed  that  he  shall  have  judgment  for  $25 
and  costs. 

It  is  not  claimed  that  here  is  an  express  promise.  Nor  is  there 
an  implied  promise  in  fact,  for  the  defendant's  assent  does  not  appear, 
and  that  is  essential  to  such  a  promise.  If  liability  exists,  therefore, 
it  must  be  by  virtue  of  a  quasi  promise — an  implied  promise  in  law, 
founded  either  on  the  doctrine  that  one  shall  not  be  allowed  to  enrich 
himself  unjustly  at  the  expense  of  another,  or  on  the  doctrine  that 
when  an  obligation  is  imposed  by  law  upon  one  to  do  an  act  because  of 
an  interest  in  the  public  to  have  it  done,  and  that  one  fails  to  do  it,  he 
who  does  do  it,  expecting  compensation,  may  recover  therefor  of 
him  on  whom  the  obligation  is  imposed.  The  latter  is  the  ground  on 
which  the  husband  is  liable  at  common  law  for  the  expenses  of  his 
wife's  funeral  (Jenkins  v.  Tucker,  1  H.  Bl.  90) ;  and,  in  some  jurisdic- 
tions, executors  and  administrators,  for  the  expenses  of  the  decedent's 
funeral  (Patterson  v.  Patterson,  59  N.  Y.  574,  17  Am.  Rep.  384).  But 
in  this  state  such  expenses  are  debts  against  the  estate,  and,  after  pay- 
ing the  necessary  expenses  of  administration,  are  preferred  above  all 
other  debts.     V.  S.  2503.     The  former  is  the  ground  on  which  the 


458  BENEFITS   WITHOUT   CONTRACT  (Ch.  4 

owner  of  lost  goods  is  bound  to  pay  the  finder  for  the  money  he 
necessarily  laid  out  and  expended  in  and  about  the  matter,  if  he  takes 
the  goods  from  the  finder ;  but  not  otherwise,  it  would  seem,  for  then 
he  would  not  be  benefited  by  the  finder's  outlay.  Chase  v.  Corcoran, 
106  Mass.  286;  Keener,  Quasi  Cont.  357. 

The  plaintifiF  was  in  the  service  of  tlie  intestate  at  the  time  of  his 
death  only  to  the  extent  of  handling  and  breaking  horses  for  him.  It 
does  not  appear  that  it  was  necessary  for  him  to  feed  and  exercise 
them  after  the  testator's  death  in  order  to  preserve  them,  for  it  does 
not  appear  that  there  was  no  one  else  to  do  it.  True,  the  town  re- 
fused ;  but  for  aught  that  appears  those  interested  in  the  estate  could 
have  done  it  or  procured  it  to  be  done.  At  all  events,  it  does  not 
appear  that  they  could  not.  Nor  can  it  be  said  that  the  horses  were 
left  in  the  defendant's  possession,  so  that  it  cast  any  duty  upon  him 
to  care  for  them  on  the  ground  of  humanity  or  otherwise.  Hence,  for 
aught  that  appears,  he  was  a  mere  volunteer  in  the  matter ;  nor  does 
it  appear  that  he  expected  compensation,  and  that  cannot  be  inferred, 
for  no  inference  can  be  drawn  by  the  court  from  agreed  facts,  because 
the  agreement  is  the  voluntary  act  of  the  parties,  the  same  as  is  the 
creation  of  a  board  of  arbitrators  or  of  referees,  from  whose  findings 
no  inferences  can  be  drawn,  because  they  are  a  court  of  the  parties* 
own  creation.  Kimball  v.  Estate  of  Baxter,  27  Vt.  628 ;  Darby  v.  Na- 
tional Bank,  57  Vt.  370. 

Nor  was  the  defendant  under  any  duty  in  respect  of  the  horses 
during  the  time  in  question,  for  he  was  not  administrator,  and  did 
not  know,  so  far  as  appears,  and  had  no  interest  to  know,  the  condi- 
tion of  things,  nor  what  the  plaintiff  was  doing.  If  the  defendant 
had  paid  the  plaintiff,  it  would  be  for  the  probate  court  to  say  whether 
he  should  be  allowed  therefor  in  his  administration  account.  The 
defendant,  therefore,  is  not  liable  on  the  second  ground  above  stated. 
Nor  is  he  liable  on  the  first  ground,  notwithstanding  the  estate 
may  have  been  benefited ;  for  the  plaintiff  was  a  volunteer,  and  that  de- 
feats him,  however  it  might  be  if  he  were  not.  In  Matter  of  Watson 
(Ex  parte  Phillips)  19  Q.  B.  D.  234,  Watson,  during  a  period  in  which 
there  was  no  personal  representative  of  the  estate  of  a  deceased  testa- 
trix and  acting  upon  the  instructions  of  one  Eaton,  a  relation  of  the 
deceased,  who  had  no  authority  in  the  premises,  did  work  as  a  solicitor 
in  respect  of  the  administration  and  for  the  benefit  of  the  estate. 
Subsequently  the  respondent,  Phillips,  obtained  letters  of  administra- 
tion de  bonis  non  and  refused  to  pay  Watson;  and  it  was  held  by 
the  Court  of  Appeals,  affirming  the  decision  of  the  Queen's  Bench  Di- 
vision, that  he  was  not  bound  to  pay,  because  the  work  was  not  per- 
formed under  any  contract  with  him.  The  court  said  that  Watson 
was  a  mere  volunteer  as  far  as  the  administrator  was  concerned,  and 
must  look  to  Eaton  for  payment,  and  that  there  was  certainly  no 
rule  of  law  nor  principle  of  equity  that  obliges  an  administrator  to 


Sec.  2)  INTENTION   TO   CLAIM   COMPENSATION  459 

pay  as  administrator  for  work  that  he  did  not  order  and  was  not  done 
for  him.  To  the  claim  that  as  the  work  was  beneficial  to  the  estate, 
and  Phillips  as  administrator  had  received  that  benefit,  it  would  be  un- 
conscientious in  him  not  to  pay  for  it,  the  court  said,  if  that  was  so, 
which  it  doubted,  it  would  not  make  new  law  in  order  to  compel  people 
to  do  that  which  they  are  bound  in  conscience  to  do.  In  Luscomb  v. 
Ballard,  5  Gray  (Mass.)  403,  66  Am.  Dec.  374,  it  was  held  that  an  exec- 
utor cannot  be  charged  in  any  capacity  for  services  beneficial  to  the 
estate,  rendered  before  his  appointment  and  without  his  assent,  under 
contracts  with  a  special  administrator  and  vy^ith  an  executor  named 
in  the  will,  but  who  declined  the  trust. 
Judgment  affirmed. 


TODD  V.  MARTIN. 
(Supreme  Court  of  California,  1894.     4  Cal.  Unrep.  Cas.  805,  37  Pac.  872.) 

Appeal  from  superior  court,  Trinity  county;   T.  E.  Jones,  Judge. 

Action  by  E.  N.  Todd  against  Isabell  J.  Martin,  administratrix  of  the 
estate  of  John  Martin,  deceased,  to  recover  for  services  as  nurse  to 
the  deceased  in  his  last  illness,  and  for  other  services.  Judgment  for 
plaintiff,  and  defendant  appeals. 

HaynES,  C.^^  *  *  *  4^  Qj^g  ll-gj^  jj^  plaintiff's  claim  is  for  sev- 
enteen days'  services  at  the  stable,  from  August  1st  to  the  17th,  which 
was  after  the  death  of  Mr.  Martin.  It  is  objected  that  these  services 
were  not  shown  to  have  been  rendered  "at  the  request  of  Mrs.  Martin, 
as  administratrix  of  the  deceased."  The  facts  were  that,  prior  to  his 
death,  the  deceased  conducted  a  livery  stable  and  plaintiff  was  employed 
therein  for  a  year  or  more  at  a  compensation  of  $50  per  month.  From 
the  time  of  Martin's  death  until  August  17th,  there  was  no  admin- 
istrator or  other  person  legally  authorized  to  take  charge  of  the  estate, 
or  to  employ  any  one  in  any  service  connected  therewith.  It  could  not 
have  been  the  duty  of  the  plaintiff,  in  view  of  his  past  employment 
by  Mr.  Martin  in  that  service,  to  have  ceased  to  care  for  the  property, 
or  permit  the  horses  to  die  of  hunger  or  thirst.  Services  of  this  char- 
acter so  rendered  prior  to  the  appointment  of  an  administrator  must 
be  deemed  to  have  been  included  in  the  term  of  service  contracted  for 
by  the  deceased,  and  to  form  a  proper  charge  against  the  estate ;  or, 
if  it  cannot  be  placed  upon  that  ground,  it  is,  while  not  a  debt  either  of 
the  intestate  or  the  administrator,  a  charge  thrown  upon  the  assets 
by  necessity,  but  for  which  the  administratrix  subsequently  appointed 
would  not  be  personally  liable.  It  is  analogous  to  a  claim  for  funeral 
expenses  paid  by  a  person  other  than  the  administrator  or  executor, 
which,  at  common  law,  are  a  charge  against  the  estate,  though  not 
strictly  a  debt  due  from  the  decedent.     In  Patterson  v.  Patterson,  59 

21  Portions  of  the  opinion,  dealing  with  other  matters,  are  omitted. 


4G0  BENEFITS   WITHOUT   COXTRACT  (Ch.  4 

N.  Y.  574,  17  Am.  Rep.  384,  the  defendant  in  an  action  upon  an  obli- 
gation made  to  the  deceased,  but  payable  to  the  executor,  was  permit- 
ted to  set  off  the  funeral  expenses  of  the  deceased  paid  by  the  defend- 
ant. In  Hapgood  v.  Houghton,  10  Pick.  (Mass.)  154,  it  was  held  that 
the  law  raises  a  promise  on  the  part  of  the  executor  or  administrator 
to  pay  for  the  funeral  expenses  as  far  as  he  has  assets,  and  that  if  he 
have  no  assets  he  should  plead  that  fact  in  bar,  and  that  if  he  has,  the 
judgment  must  be  against  them  in  his  hands.  Humanity,  as  well  as 
the  interests  of  the  estate,  required  that  the  stock  be  cared  for,  and 
no  one  could  more  appropriately  assume  that  duty  than  one  who  had 
been  employed  by  the  decedent  in  his  lifetime  to  perform  the  same 
service ;  and  as  to  the  value  of  the  services,  that  compensation  which 
had  been  paid  plaintiff  by  the  decedent  will  be  deemed  reasonable ; 
and  as  to  services  rendered  after  the  death  of  Mr.  Martin,  plaintiff 
is  a  competent  witness.     *     *     * 

Finding  no  error  which  requires  a  reversal  we  advise  that  the 
judgment  be  affirmed. 

Per  Curiam.  For  the  reasons  given  in  tlie  foregoing  opinion,  tlie 
judgment  appealed  from  is  affirmed.^^ 

22  Compare  In  re  Bryant's  Estate  (1897)  180  Pa.  192.  36  Atl.  738.  See,  also. 
Trustees  v.  Greenough  (1881)  105  U.  S.  527,  26  L.  Ed.  1157. 

In  Great  Northern  Railway  Co.  v.  Swaffield  (1874)  L.  R.  9  Exch,  132,  the 
defendant  shipped  his  horse  to  himself  at  Sandy  by  plaintiff's  line,  and  tlie 
horse  arriving  at  night,  and  no  one  being  on  hand  to  receive  it,  plaintifC's 
agent  put  up  the  horse  at  a  livery  stable,  as  the  railroad  had  no  facilities 
for  caring  for  the  horse.  The  next  day  there  was  a  dispute  as  to  who  should 
bear  the  liveryman's  charges,  the  upshot  of  which  was  that  the  horse  was 
left  in  the  livery  stable;  the  owner  declining  to  take  hira  unless  reimbursed 
for  his  expenses  and  loss  of  time.  Later  the  railroad  paid  the  liveryman,  de- 
livered the  horse  to  the  owner,  and  brought  suit  against  him  for  tlie  livery- 
man's charges.  The  court  held  for  the  plaintiff,  sajing  that  since  the  defend- 
ant left  the  horse  with  the  carriers,  and  refused  to  taJie  it,  the  carriers  "were 
bound  from  ordinary  feelings  of  humanity  to  keep  the  horse  safely  and  feed  him  : 
and  that  became  necessary  in  consequence  of  the  defendant's  own  conduct 
in  refusing  to  receive  the  animal  at  the  end  of  tlie  journey  according  to  his 
contract." 

But  see  Earle  v.  Coburn  (1881)  130  Mass.  596,  where  it  was  held  that  there 
was  no  liability  on  defendant  to  reimburse  plaintiff  for  the  exjienses  of  keep- 
ing plaintiff's  horse  after  an  express  disclaimer  of  responsibility  by  defend- 
ant; the  court  declaring  that  a  promise  to  pay  will  never  be  implied  against 
a  defendant's  protest,  except  in  cases  where  the  law  imposes  a  duty,  which 
duty  must  be  a  legal  duty,  not  a  mere  moral  one.  "The  common  law  deals 
with  and  enforces  legal  duties  not  moral ;  moral  duties  are  defined  and  en- 
forced in  a  different  forum."  Earle  v.  Coburn  was  followed  in  Keith  v.  De 
Bussigney  (1901)  179  Mass.  255,  60  N.  E.  614. 

Similarly  in  Force  v.  Haines  (1840)  17  N.  J.  Law,  385,  plaintiff  was  not  al- 
lowed to  recover  from  defendant  for  support  furnished  the  latter's  slave  after 
a  disclaimer  of  responsibility  by  defendant;  the  court  saying  that  plaintiff's 
duty  under  the  circumstances  was  to  notify  the  overseer  of  the  poor. 

Negotiorum  Gestio  in  the  Civil  Law. — "If  one  man  has  managed  the 
business  of  another  during  the  latter's  absence,  each  can  sue  the  other  by 
the  action  on  uncommissioned  agency ;  the  direct  action  being  available  to 
him  whose  business  was  managed,  the  contrary  action  to  him  who  managed 
it.  It  is  clear  that  these  actions  cannot  properly  be  said  to  originate  in  a  con- 
tract, for  their  peculiarity  is  that  they  lie  only  where  one  man  has  come 
forward  and  managed  the  business  of  another  without  having  received  any 
commission  so  to  do,  and  that  other  is  thereby  laid  under  a  legal  obligation 


Sec.  2)  INTENTION  TO   CLAIM   COMPENSATION  461 

SCEVA  V.  TRUE. 

(Supreme  Judicial  Court  of  New  Hampshire,  1873.    53  N.  H.  627.) 
This  case  is  printed  at  page  27,  supra.^' 


COTNAM  V.  WISDOM. 

(Supreme  Court  of  Arkansas,  1907.     83  Ark.  COl,  101  S.  W.  164,  12  L.  R.  A. 
[N.  S.]  1090,  119  Am.  St.  Rep.  157,  13  Ann.  Cas.  25.) 

Appeal  from  Circuit  Court,  Pulaski  County;    R.  J.  Lea,  Judge. 

Action  by  F.  L.  Wisdom  and  another  against  T.  T.  Cotnam,  ad- 
ministrator of  A.  M.  Harrison,  deceased,  for  services  rendered  by 
plaintiffs  as  surgeons  to  defendant's  intestate.  Judgment  for  plain- 
tiffs.    Defendant  appeals. 

Instructions  1  and  2,  given  at  the  instance  of  plaintiffs,  are  as  fol- 
lows: "(1)  If  you  find  from  the  evidence  that  plaintiffs  rendered  pro- 
fessional services  as  physicians  and  surgeons  to  the  deceased,  A.  M. 
Harrison,  in  a  sudden  emergency  follow^ing  the  deceased's  injury  in 
a  street  car  wreck,  in  an  endeavor  to  save  his  life,  then  you  are  in- 
structed that  plaintiffs  are  entitled  to  recover  from  the  estate  of  the 
said  A.  M.  Harrison  such  sum  as  you  may  find  from  the  evidence  is 
a  reasonable  compensation  for  the  services  rendered.  (2)  The  char- 
acter and  importance  of  the  operation,  the  responsibility  resting  upon 
the  surgeon  performing  the  operation,  his  experience  and  professional 
training,  and  the  ability  to  pay  of  the  person  operated  upon,  are  ele- 
ments to  be  considered  by  you  in  determining  what  is  a  reasonable 
charge  for  the  services  performed  by  plaintiffs  in  the  particular  case." 

Hill,  C.  J.^*  (after  stating  the  facts).    The  reporter  will  state  the 

even  though  he  knows  nothing  of  what  has  taken  place.  The  reason  of  this  Is 
the  general  convenience;  otherwise  people  might  be  summoned  away  by 
some  sudden  event  of  pressing  Importance,  and  without  commissioning  any 
one  to  look  after  and  manage  their  affairs,  the  result  of  which  would  be 
that  during  their  absence  those  affairs  would  be  entirely  neglected:  and 
of  course  no  one  would  be  likely  to  attend  to  them  if  he  were  to  have*  no 
action  for  the  recovery  of  any  outlay  he  might  have  incurred  in  so  doing. 
Conversely,  as  the  uncommissioned  agent,  if  his  management  is  good,  lays, 
his  principal  under  a  legal  obligation,  so  too  he  is  himself  answerable  to  the 
latter  for  an  account  of  his  management ;  and  herein  he  must  show  that  he 
has  satisfied  the  highest  standard  of  carefulness,  for  to  have  displayed 
such  carefulness  as  he  is  wont  to  exercise  in  his  own  affairs  is  not  enough,  if 
only  a  more  diligent  person  could  bave  managed  the  business  better."  The 
Institutes  of  Justinian  (A.  D.  533)  Book  III,  title  XXVII,  1  (Moyle's  Trans- 
lation). 

See  also  the  Digest  of  Justinian,  Book  III,  Title  V.  Similar  provisions  are 
found  in  the  modem  Continental  Law.  French  Civil  Code,  §§  1372-1375 ; 
German  Civil  Code,  §§  677-685. 

23  In  Lyon  v.  Minor  (191.3)  174*  Mich.  114,  140  N.  W.  517,  45  L.  R.  A.  (N.  S.) 
67,  Ann.  Cas.  1915A,  726,  It  was  held  that  an  attorney  could  recover  compensation 
for  services  rendered  to  assist  a  person,  committed  to  an  institution  as  insane, 
to  secure  his  release  therefrom,  as  for  necessaries,  if  they  were  faitbfully  and 
intelligently  performed,  although  they  may  not  have  been  successful. 

See  also  note  to  the  principal  case,  jiage  32,  supra. 

24  The  statement  of  facts  is  taken  from  tbe  Southwestern  Reporter. 


462  BENEFITS   WITHOUT   CONTRACT  (Ch.  4 

issues  and  substance  of  the  testimony  and  set  out  instructions  1  and  2 
given  at  instance  of  appellee,  and  it  will  be  seen  therefrom  that  in- 
struction 1  amounted  to  a  peremptory  instruction  to  find  for  the  plain- 
tiff in  some  amount. 

The  first  question  is  as  to  the  correctness  of  this  instruction.  As 
indicated  therein  the  facts  are  that  Mr.  Harrison,  appellant's  intestate, 
was  thrown  from  a  street  car,  receiving  serious  injuries  which  ren- 
dered him  unconscious,  and  while  in  that  condition  the  appellees  were 
notified  of  the  accident  and  summoned  to  his  assistance  by  some 
spectator,  and  performed  a  difficult  operation  in  an  effort  to  save  his 
life,  but  they  were  unsuccessful,  and  he  died  without  regaining  con- 
sciousness. The  appellant  says:  "Harrison  was  never  conscious  after 
his  head  struck  the  pavement.  He  did  not  and  could  not,  expressly  or 
impliedly,  assent  to  the  action  of  the  appellees.  He  was  without  knowl- 
edge or  will  power.  However  merciful  or  benevolent  may  have 
been  the  intention  of  the  appellees,  a  new  rule  of  law,  of  contract  by 
implication  of  law,  will  have  to  be  established  by  this  court  in  order 
to  sustain  the  recovery."  Appellant  is  right  in  saying  that  the  recovery 
must  be  sustained  by  a  contract  by  implication  of  law,  but  is  not  right 
in  saying  that  it  is  a  new  rule  of  law,  for  such  contracts  are  almost 
as  old  as  the  English  system  of  jurisprudence.  They  are  usually  called 
"implied  contracts."  More  properly  they  should  be  called  "quasi  con- 
tracts" or  "constructive  contracts."  See  1  Page  on  Contracts,  §  14; 
also  2  Page  on  Contracts,  §  771. 

The  following  excerpts  from  Sceva  v.  True,  53  N.  H.  627,  are 
peculiarly  applicable  here: -^     *     *     * 

This  subject  is  fully  discussed  in  Beach  on  the  Modern  Law  of  Con- 
tracts, 639  et  seq.,  and  2  Page  on  Contracts,  771  et  seq.  One  phase 
in  the  law  of  implied  contracts  was  considered  in  the  case  of  Lewis  v. 
Lewis,  75  Ark.  191,  87  S.  W.  134.  In  its  practical  application  it  sus- 
tains recovery  for  physicians  and  nurses  who  render  services  for  in- 
fants, insane  persons,  and  drunkards.  2  Page  on  Contracts,  §§  867, 
897,  906.  And  services  rendered  by  physicians  to  persons  uncon- 
scious or  helpless  by  reason  of  injury  or  sickness  are  in  the  same  sit- 
uation as  those  rendered  to  persons  incapable  of  contracting,  such  as 
the  classes  above  described.  Raoul  v.  Newman,  59  Ga.  408;  Meyer 
v.  K.  of  P.,  178  N.  Y.  63,  70  N.  E.  Ill,  64  L.  R.  A.  839.  The  court 
was  therefore  right  in  giving  the  instruction  in  question. 

2.  The  defendant  sought  to  require  the  plaintiff  to  prove,  in  addi- 
tion to  the  value  of  the  services,  the  benefit,  if  any,  derived  by  the  de- 
ceased from  the  operation,  and  alleges  error  in  the  court  refusing  to 
so  instruct  the  jury.  The  court  was  right  in"  refusing  to  place  this  bur- 
den upon  the  physicians.  The  same  question  was  considered  in  Ladd 
V.  Witte,  116  Wis.  35,  92  N.  W.  365,  where  the  court  said:    "That  is 

25  The  court  here  quoted  at  length  from  Sceva  v.  True,  page  27,  supra. 


Sec.  2)  INTENTION  TO   CLAIM   COMPENSATION  4G3 

not  at  all  the  test.  So  that  a  surgical  operation  be  conceived  and  per- 
formed with  due  skill  and  care,  the  price  to  be  paid  therefor  does  not 
depend  upon  the  result.  The  event  so  generally  lies  with  the  forces 
of  nature  that  all  intelligent  men  know  and  understand  that  the  sur- 
geon is  not  responsible  therefor.  In  absence  of  express  agreement, 
the  surgeon,  who  brings  to  such  a  service  due  skill  and  care,  earns  the 
reasonable  and  customary  price  therefor,  whether  the  outcome  be 
beneficial  to  the  patient  or  the  reverse." 

3.  The  court  permitted  to  go  to  the  jury  the  fact  that  Mr.  Harrison 
was  a  bachelor,  and  that  his  estate  would  go  to  his  collateral  relatives, 
and  also  permitted  proof  to  be  made  of  the  value  of  the  estate,  which 
amounted  to  about  $18,500,  including  $10,000  from  accident  and  life 
insurance  policies.  There  is  a  conflict  in  the  authorities  as  to  whether 
it  is  proper  to  prove  the  value  of  the  estate  of  a  person  for  whom  med- 
ical services  were  rendered,  or  the  financial  condition  of  the  person 
receiving  such  services.  In  Robinson  v.  Campbell,  47  Iowa,  625,  it 
was  said:  "There  is  no  more  reason  why  this  charge  should  be  en- 
hanced on  account  of  the  ability  qf  the  defendants  to  pay  than  that  the 
merchant  should  charge  them  more  for  a  yard  of  cloth,  or  the  druggist 
for  filling  a  prescription,  or  a  laborer  for  a  day's  work."  On  the 
other  hand,  see  Haley's  Succession,  50  La.  Ann.  840,  24  South.  285, 
and  Lange  v.  Kearney,  51  Hun,  640,  4  N.  Y.  Supp.  14,  which  was 
affirmed  by  the  Court  of  Appeals,  127  N.  Y.  676,  28  N.  E.  255,  hold- 
ing that  the  financial  condition  of  the  patient  may  be  considered. 
Whatever  may  be  the  true  principle  governing  this  matter  in  contracts, 
the  court  is  of  the  opinion  that  the  financial  condition  of  a  patient 
cannot  be  considered  where  there  is  no  contract  and  recovery  is  sus- 
tained on  a  legal  fiction  which  raises  a  contract  in  order  to  afford  a 
remedy  which  the  justice  of  the  case  requires.  In  Morrissett  v.  Wood, 
123  Ala.  384,  26  South.  307,  82  Am.  St.  Rep.  127,  the  court  said :  "The 
trial  court  erred  in  admitting  testimony  as  to  the  value  of  the  patient's 
estate,  against  the  objection  of  the  defendant.  The  inquiry  was  as 
to  the  value  of  the  professional  services  rendered  by  the  plaintiff  to 
the  defendant's  testator,  and,  as  the  case  was  presented  below,  the 
amount  or  value  of  the  latter's  estate  could  shed  no  legitimate  light 
upon  this  issue  nor  aid  in  its  elucidation.  The  cure  or  amelioration 
of  disease  is  as  important  to  a  poor  man  as  it  is  to  a  rich  one,  and, 
prima  facie  at  least,  the  services  rendered  the  one  are  of  the  same 
value  as  the  same  services  rendered  to  the  other.  If  there  was  a  recog- 
nized usage  obtaining  in  the  premises  here  involved  to  graduate  pro- 
fessional charges  with  reference  to  the  financial  condition  of  the  per- 
son for  whom  such  services  are  rendered,  which  had  been  so  long  es- 
tablished and  so  universally  acted  upon  as  to  have  ripened  into  a  cus- 
tom of  such  character  that  it  might  be  considered  that  these  services 
were  rendered  and  accepted  in  contemplation  of  it,  there  is  no  hint 
of  it  in  the  evidence." 

There  was  evidence   in   this  case   proving  that   it  was  customary 


464  BENEFITS   WITHOUT   CONTRACT  (Ch.  4 

for  physicians  to  graduate  their  charges  by  the  ability  of  the  pa- 
tient to  pay,  and  hence,  in  regard  to  that  element,  this  case  dififers  from 
the  Alabama  case.  But  the  value  of  the  Alabama  decision  is  the  rea- 
son given  which  may  admit  such  evidence,  viz.,  because  the  custom 
would  render  the  financial  condition  of  the  patient  a  factor  to  be 
contemplated  by  both  parties  when  the  services  were  rendered  and  ac- 
cepted. The  same  thought  differently  expressed  is  found  in  Lange 
v.  Kearney,  51  Hun,  640,  4  N.  Y.  Supp.  14.  This  could  not  apply  to  a 
physician  called  in  an  emergency  by  some  bystander  to  attend  a 
stricken  man  whom  he  never  saw  or  heard  of  before ;  and  certainly, 
the  unconscious  patient  could  not,  in  fact  or  in  law,  be  held  to  have 
contemplated  what  charges  the  physician  might  properly  bring  against 
him.  In  order  to  admit  such  testimony,  it  must  be  assumed  that  the 
surgeon  and  patient  each  had  in  contemplation  that  the  means  of  the 
patient  would  be  one  factor  in  determining  the  amount  of  the  charge 
for  the  services  rendered.  While  the  law  may  admit  such  evidence 
as  throwing  light  upon  the  contract  and  indicating  what  was  really  in 
contemplation  when  it  was  made,  yet  a  different  question  is  presented 
when  there  is  no  contract  to  be  ascertained  or  construed,  but  a  mere 
fiction  of  law  creating  a  contract  where  none  existed  in  order  that 
there  might  be  a  remedy  for  a  right.  This  fiction  merely  requires  a 
reasonable  compensation  for  the  services  rendered.  The  services 
are  the  same  be  the  patient  prince  or  pauper,  and  for  them  the  sur- 
geon is  entitled  to  fair  compensation  for  his  time,  service,  and  skill. 
It  was  therefore  error  to  admit  this  evidence,  and  to  instruct  the  jury 
in  the  second  instruction  that  in  determining  what  was  a  reasonable 
charge  they  could  consider  the  "ability  to  pay  of  the  person  operated 
upon." 

It  was  improper  to  let  it  go  to  the  jury  that  Mr.  Harrison  was  a 
bachelor  and  that  his  estate  was  left  to  nieces  and  nephews.  This  was 
relevant  to  no  issue  in  the  case,  and  its  effect  might  well  have  been 
prejudicial.  While  this  verdict  is  no  higher  than  some  of  the  evidence 
would  justify,  yet  it  is  much  higher  than  some  of  the  other  evidence 
would  justify,  and  hence  it  is  impossible  to  say  that  this  was  a  harmless 
error. 

Judgment  is  reversed,  and  cause  remanded.^" 

Battle  and  Wood,  JJ.,  concur  in  sustaining  the  recovery,  and  in 
holding  that  it  was  error  to  permit  the  jury  to  consider  the  fact  that 
his  estate  would  go  to  collateral  heirs ;  but  they  do  not  concur  in 
holding  that  it  was  error  to  admit  evidence  of  the  value  of  the  estate, 
and  instructing  that  it  might  be  considered  in  fixing  the  charge. 

26  Accord :  Pray  v.  Stinson  (1843)  21  Me.  402 ;  Dunbar  v.  Williams  (1813) 
10  Johns.  (N.  Y.)  249,  semble. 

See,  also,  Raoul  v.  Newman  (1877)  59  Ga.  408,  Richardson  v.  Strong  (1851) 
35  N.  C.  106,  55  Am.  Dec.  430. 

Contra :    Bradner  v.  Krebbs  (1894)  54  111.  App.  652. 

Compare  Edson  v,  Hammond  (1911)  142  App.  Div.  693,  127  N.  Y.  Supp.  359 

As  to  the  rule  in  admiralty,  see  The  Renpor  (1883)  8  P.  D.  115. 


Sec.  2)  INTENTION   TO   CLAIM   COMPENSATION  465 

PIERPONT  V.  WILSON. 

(Supreme  Court  of  Errors  of  Connecticut,  1881.     49  Conn.  450.) 

Assumpsit  for  goods  sold,  brought  to  the  Court  of  Common  Pleas, 
and  tried  before  Harrison,  J.  Facts  found  and  judgment  rendered 
for  the  plaintiff  for  a  less  sum  than  he  claimed.  Motion  in  error  by 
plaintiff.    The  case  is  fully  stated  in  the  opinion. 

Pardee,  J.  In  October,  1878,  the  defendant  abandoned  his  wife; 
she  having  neither  necessary  food  nor  means  for  procuring  it,  the  plain- 
tiff supplied  her  upon  the  credit  of  the  defendant  until  March  28,  1879 ; 
his  account  is  $104.93.  In  November,  1878,  he  sent  to  the  defendant 
a  statement  of  suppHes  theretofore  furnished,  amounting  to  $16.87; 
the  latter  then  notified  him  that  he  should  pay  neither  for  past  nor 
future  supplies  furnished  without  his  written  order.  From  the  time 
of  the  abandonment  the  defendant  was  not  asked  by  his  wife  to  fur- 
nish supplies ;  he  furnished  none ;  and  notified  parties  generally  with 
whom  he  had  been  trading  not  to  trust  her  except  upon  an  order  from 
himself,  but  gave  her  no  order  for  supplies.  The  plaintiff  claimed 
judgment  for  the  full  amount  of  his  account;  the  Court  of  Common 
Pleas  allowed  him  $16.87,  and  interest;  he  filed  a  motion  in  error. 

Marriage  imposes  upon  the  husband  an  obligation  to  supply  his 
wife  with  necessary  food — an  obligation  from  which  he  does  not  ob- 
tain release  by  abandoning  her.  The  defendant  by  knowingly  permit- 
ting his  wife  to  be  without  necessary  supplies,  and  without  money  or 
credit  of  her  own  wherewith  to  procure  them,  authorized  her  to  pur- 
chase them  from  the  plaintiff  or  any  other  person  who,  having  knowl- 
edge of  her  necessities,  should  supply  them.  He  could  at  any  time 
put  an  end  to  the  right  of  the  plaintiff  to  supply  her  upon  his  credit 
by  himself  supplying  her.  But,  while  purposely  withholding  all  credit 
and  all  supplies,  he  could  not  shut  her  up  to  want,  either  by  following 
her  and  by  private  notices  barring  each  successive  door  which  might 
open  to  her  appeal,  or  by  inserting  notices  in  the  newspapers  warning 
every  person  against  supplying  her.  He  must  supply  her  if  he  desires 
to  terminate  the  power  to  pledge  his  credit  which  his  neglect  has  given 
her.  And,  having  abandoned  her  with  knowledge  tliat  she  would 
presently  be  without  necessary  supplies  and  without  money  or  credit 
of  her  own  wherewith  to  obtain  them,  and  having  intentionally  re- 
frained from  supplying  her,  she  was  under  no  obligation  to  seek  him 
and  ask  his  consent  to  her  purchase  from  the  plaintiff;  nor  was  the 
latter,  knowing  her  necessities,  under  any  obligation  to  obtain  his  per- 
mission to  supply  them.  Her  necessary  food  is  not  to  be  made  de- 
pendent upon  her  ability  to  find  him.  After  abandonment  the  obliga- 
tion remained  upon  him  to  take  the  initiative ;  to  furnish  food,  known 
TnuRS.QuASi  CoNT. — 30 


466  BENEFITS   WITHOUT   CONTRACT  (Ch.  4 

to  hTm  to  be  necessary,  without  demand ;    and  unless  he  furnished  it, 
notices,  special  or  general,  avail  him  nothing. 

There  is  error  in  the  judgment  complained  of;  it  should  be  for  the 
full  amount  of  the  plaintiff's  claim.^' 

27  Accord :  Cromwell  v.  Benjamin  (ISCi^)  41  Barb.  (N.  Y.)  558 ;  Baker  v. 
Oughton  (1906)  130  Iowa,  35,  106  N.  W.  272;  Mayhew  v.  Thayer  (1857)  8  Gray 
(Mass.)  172. 

In  Cromwell  v.  Benjamin,  supra,  the  court  said  :  "The  husband  may  be  liable 
for  necessaries  furnished  to  the  wife,  in  certain  cases,  thouigh  the  existence 
of  an  agency  or  assent,  express  or  implied  in  fact,  is  wholly  disproved  by  the 
evidence,  and  this,  upon  the  ground  of  an  agency  implied  in  law,  though  there 
can  be  none  presumed  in  fact.  It  is  a  settled  principle  in  the  law  of  husband 
and  wife,  that  by  virtue  of  the  marital  relation,  and  in  consequence  of  the 
obligations  assumed  by  him  upon  marriage,  the  husband  is  legally  bound  for 
the  supply  of  necessaries  to  the  wife,  so  long  as  she  does  not  violate  her  duty 
as  wife ;  that  is  to  say,  so  long  as  she  is  not  guilty  of  adultery  or  elopement. 
The  husband  may  discharge  this  obligation  by  supplying  her  with  necessaries 
himself  or  by  his  agents,  or  giving  her  an  adequate  allowance  in  money,  and 
then  he  is  not  liable  to  a  tradesman  who.  without  his  authority,  furnishes 
her  with  necessaries ;  but  if  he  does  not  himself  provide  for  her  support,  he 
is  legally  liable  for  necessaries  furnished  to  her  by  tradesmen,  even  though 
against  his  orders." 

In  De  Bran  were  v.  De  Brauwere  (1911)  203  N.  T.  460,  96  N.  E.  722,  38  L. 
R.  A.  (N.  S.)  508,  a  wife  who  had  been  deserted  by  her  husband  supported  her- 
self and  her  children  by  her  own  labor  anrl  sued  her  husband  for  the  amount 
thus  expended  for  support.  The  court  upheld  her  right  to  recover,  saying : 
"The  husband  was  unquestionably  under  a  legal  obligation  to  provide  his  wile 
and  children  with  the  necessaries  of  life  suitiible  to  their  condition.  This  lia- 
bility would  have  been  enforcible  by  the  wife  in  her  own  behalf  and  in  behalf 
of  her  infant  children  were  it  not  for  her  disability  at  common  law  to  sue  her 
husband.  This  disability  having  been  removed,  a  wife  who  has  applied  her 
separate  estate  to  the  purpose  of  an  obligation  resting  primarily  urion  her  hus- 
band may  now  recover  from  him  the  reasonable  amounts  which  she  has  thus 
expended  out  of  her'  separate  estate  in  discharge  of  his  obligation." 

Liability  of  Parent  for  Necessaries  Furnished  His  Infant  Children. — 
"A  parent  is  under  a  natural  obligation  to  furnish  necessaries  for  his  in- 
fant children  ;  and  if  the  parent  neglect  that  duty,  any  other  person  who  sui> 
plies  such  necassaries  is  deemed  to  have  conferred  a  benefit  on  the  delinquent 
parent,  for  which  the  law  raises  an  implied  promise  to  pav  on  the  part  of 
the  parent."  Van  Valkenburgh  v.  Watson  (1816)  13  Johns.  (N.  Y.)  480,  7  Am. 
Dec.  395  (complaint  dismissed,  as  not  shown  that  father  neglected  his  duty 
to  furnish  necessaries) ;  Porter  v.  Powell  (1890)  79  Iowa,  159,  44  N.  W.  295,  7 
L.  R.  A.  176,  18  Am.  St.  Rep.  353  (recovery  for  medical  services  furnished  in 
an  emergency  to  defendant's  daughter,  who  though  living  away  from  home 
had  not  been  fully  emancipated) ;  Rogers  v.  Rogers  (two  cases)  (1914)  93  Kan. 
108,  143  Pac.  408;  Id.,  93  Kan.  114,  143  Pac.  410.  L.  R.  A.  191 5A.  1137;  (recov- 
ery for  support  of  children  by  wife  who  had  subsequently  obtained  a  divorce) ; 
De  Brauwere  v.  De  Brauwere,  supra. 

Contra  :  Kelley  v.  Davis  (1870)  49  N.  H.  187,  6  Am.  Rep.  499  (on  ground 
that  in  the  absence  of  statute  the  father  owes  no  legal  duty  to  support  his 
minor  children). 

See  Tiffany  on  Persons  and  Domestic  Relations,  §  116. 


Sec.  2)  INTENTION  TO   CLAIM  COMPENSATION  467 

TRUSTEES  OF  CINCINNATI  TOWNSHIP  v.  OGDEN. 
(Supreme  Court  of  Ohio,  1S31.     5  Ohio,  23.) 

This  cause  came  before  the  court  on  a  writ  of  error  to  tlie  court 
of  common  pleas  of  Hamilton  county.  The  case  was  this,  as  presented 
in  a  bill  of  exceptions : 

The  declaration  was  in  assumpsit,  and  counted  for  "meat,  drink, 
washing,  and  lodging,  and  other  necessaries,  found  and  provided  by 
the  plaintiff,  at  the  special  instance  and  request  of  the  defendants,  for 
one  Martha  Good,  then  and  there  being  an  inhabitant  of  Cincinnati 
township,  and  then  and  there  being  in  a  necessitous  and  suffering  condi- 
tion."   Plea,  non  assumpsit. 

The  proof,  on  the  trial,  disclosed  that  about  December  8,  1829,  Og- 
den  hired  Martha  Good  to  perform  domestic  labor  in  his  family ;  that 
about  the  15th  of  December,  she  was  taken  sick  with  the  small-pox,  of 
which  she  was  confined  to  her  bed,  in  Ogden's  house,  about  two  weeks, 
when  she  died.  During  this  period  she  was  provided  for  and  nursed 
by  Ogden's  family,  who,  after  death,  provided  her  burial  clothes ; 
that  she  was  apparently  destitute  of  property,  except  some  clothing ; 
that  she  came  from  some  other  county  of  the  state  than  Hamilton, 
and  had  no  legal  settlement  in  Cincinnati  township;  that  when  taken 
sick,  Ogden  applied  to  the  trustees  to  take  charge  of  her,  who  visited 
her  and  refused,  but  contributed  one  dollar  as  a  gratuity,  and  proposed 
some  other  gratuitous  aid,  which  Ogden  refused  to  accept,  unless  upon 
an  agreement  to  provide  for  her  altogether ;  that  there  was  no  county 
poor-house  in  Hamilton  county,  and  that  Ogden  was  a  man  in  narrow 
circumstances.  Upon  this  proof  the  court  of  common  pleas  charged 
the  jury  that  the  plaintiff  was  entitled  to  recover,  and  a  verdict  was 
given  for  thirty  dollars.  The  suit  having  been  appealed  from  the 
judgment  of  the  mayor,  for  fifteen  dollars,  by  the  trustees,  judgment 
was  rendered  by  the  common  pleas  for  the  amount  of  the  verdict  and 
costs,  to  reverse  which,  this  writ  of  error  was  brought. 

Hitchcock,  J.^*  The  court  are  called  upon  in  this  case  to  give  a 
construction  to  the  "Act  for  the  relief  of  the  poor,"  passed  February 
10,  1816  (14  Ohio  Laws,  p.  197),  and  the  act  amendatory  thereto, 
passed  February  12,  1829  (27  Ohio  Laws,  p.  54). 

We  cannot  expect  to  derive  much  assistance  in  the  performance  of 
this  duty  from  the  examination  of  English  or  American  cases.  The 
whole  subject  of  supporting  the  poor,  where  it  is  done  in  pursuance 
of  municipal  law,  depends  upon  statute  regulation,  and  these  statutes 
have  been  variant  in  different  countries.  It  is  owing  to  this  variance 
that  different  decisions,  upon  the  same  question,  are  made  in  different 
states. 

In  this  state,  it  has  ever  been  the  policy  that  each  incorporated  town- 
ship should  support  all  paupers  within  their  respective  limits.     This 

«8  Portions  of  the  opinion  are  omitted. 


4G8  BENEFITS  WITHOUT   CONTRACT  (Ch.  4 

does  not  seem  to  be  controverted  by  the  counsel  for  the  plaintiff  in 
error  so  far  as  it  respects  those  who  have  obtained  legal  settlement; 
but  it  is  denied  that  any  duty  is  imposed  to  maintain  those  who  are 
merely  casual  residents.  The  statutes  in  force  at  the  time  the  liability 
of  the  plaintiff  in  error  occurred,  if  there  is  any  liability,  are  those  of 
February  10,  1816,  and  February  29,  1829,  and  it  is  by  these  statutes 
the  gase  must  be  governed.  Section  1  of  the  act  of  1816,  enacts  "that 
the  overseers  of  the  poor  shall  have  the  care  and  management  of  all 
paupers  witliin  the  limits  of  their  respective  townships."  Here  is  no 
restriction,  no  limitation.  "All  paupers,"  within  the  limits  of  the 
township,  are  to  be  under  the  care  and  management  of  the  overseers 
of  the  poor.  It  may  be  proper  here  to  remark,  that  the  trustees  of 
Cincinnati  township  are,  by  statute,  authorized  and  required  to  dis- 
charge the  duties  of  overseers  of  tlie  poor. 

Section  2  of  the  same  statute  enacts  "that  upon  complaint  being 
made  to  tlie  overseers  of  the  poor,  that  any  inhabitant  or  inhabitants 
are  in  a  suffering  condition,"  etc.  Every  person  residing  in  a  town- 
ship is  an  inhabitant,  although  such  person  may  not  have  gained  a 
legal  settlement. 

It  would  seem  to  the  court,  that  a  fair  construction  of  tliese  two  sec- 
tions of  the  statute  would  lead  to  the  conclusion  that  the  obligation 
was  imposed  upon  the  township  to  maintain  or  support,  not  only  such 
paupers  as  have  gained  a  legal  settlement  therein,  but  also  such  as  were 
casual  residents  and  who  might  need  assistance.  But,  if  there  could 
be  any  doubt  upon  these  two  sections,  that  doubt  must  be  removed 
upon  the  examination  of  the  fifth.     *     *     * 

The  next  question  to  be  examined  is,  whether  an  individual  who 
has  furnished  necessaries  to  a  pauper  can  maintain  an  action  against 
the  township.  The  solution  of  this  question  must  depend  upon  the 
nature  of  the  obligation  which  rests  upon  a  township  to  support  its 
poor.  If  it  be  merely  in  the  nature  of  a  moral  obligation,  then  no 
action  can  be  maintained  unless  there  has  been  a  previous  request  or 
an  express  promise  on  the  part  of  the  township.  But  if,  on  the  other 
hand,  it  be  an  absolute  legal  obligation,  then  the  law  implies  a  promise 
and  an  action  can  be  sustained.  We  are  of  the  opinion  that  it  is  of 
this  latter  description.  The  supreme  power  of  the  state,  by  legisla- 
tive enactment,  has  imposed  the  obligation.  It  is  of  as  much  binding 
force  as  the  obligation  of  a  parent  to  support  his  child  or  a  husband 
his  wife.  We  do  not  say  that  in  every  case,  where  an  individual  fur- 
nishes necessaries  to  a  pauper,  he  can  maintain  an  action  against  the 
township.  Complaint  must,  in  the  first  instance,  be  made  to  the  over- 
seers of  the  poor.^'     If  tliese  neglect  their  duty,  or  if  the  trustees  of 

29  Usually  one  who  has  furnished  such  necessaries  to  a  pauper  without  first 
notifying  the  pul)lic  autliorities  is  not  allowed  reimbursement  from  the  county. 
Hamilton  County  v.  Meyers  (18SS)  23  Neb.  718,  37  N.  W.  G23;  and  see  Sals- 
bury  V.  City  of  Philadelphia  (1863)  44  Pa.  303.  Unless  it  be  a  case  of  medical 
ser\-ices  rendered  in  an  emergency.  Lee  County  v.  Gilbert  (1893)  70  Miss.  791, 
12  South.  593.     Eobbins  v.  Town  of  Homer  (1905)  95  Minn.  201,  103  N.  W. 


Sec.  2)  INTENTION  TO  CLAIM   COMPENSATION  469 

the  township  refuse  to  make  the  necessary  order,  it  is  right  and  proper 
for  an  individual  to  furnish  a  distressed  pauper  with  the  necessary 
relief,  and  justice,  sound  policy,  and  law  require  that  the  individual 
performing  this  benevolent  act  should  be  remunerated. 

On  the  part  of  the  plaintiffs  in  error,  it  is  urged  that  it  is  discre- 
tionary with  the  trustees  to  make  or  refuse  an  order  for  the  support 
of  a  pauper;  and  that  if  these  officers,  in  the  exercise  of  that  discre- 
tion, refuse,  the  township  cannot  be  subjected  to  an  action,  although 
by  possibility  the  officers,  in  their  individual  capacity  might  be  liable 
for  nonfeasance  or  misfeasance.  It  is  true  that  a  discretion  is  vested 
in  the  trustees,  but  it  must  be  exercised  in  such  a  manner  as  to  carry 
into  effect  the  object  of  the  law.  They  are  the  agents  of  the  town- 
ship. The  township,  not  the  individual  trustees,  is  the  responsible 
body,  and  the  township  cannot  excuse  itself  by  saying  that  its  agents 
have  been  guilty  of  official  misconduct. 

It  is  further  intimated  that  tliese  officers  should  be  proceeded 
against  by  mandamus ;  and  such,  in  certain  cases,  seems  to  be  the 
mode  of  proceeding  in  New  York.  But  if  the  object  was  to  compel 
the  trustees  to  make  the  necessary  order,  this  would  be  but  a  poor 
remedy,  especially  where  the  pauper  was  suffering  under  the  ravages 
of  a  dangerous  and  loathsome  disease.  Before  it  could  be  applied 
the  township  would,  in  all  probability,  be  relieved  from  expense  by 
the  death  of  the  miserable  being. 

.  In  the  case  before  the  court,  it  appears  that  Martha  Good,  the  in- 
dividual relieved,  was  residing  in  Cincinnati.  She  was  taken  sick 
in  the  house  of  Ogden  with  the  small-pox.  She  was  clearly  a  pauper, 
and  needed  assistance.  Ogden  complained  to  the  trustees,  and  de- 
manded of  them  to  take  the  charge  of  her.  This  they  refused.  He 
was  compelled  either  to  let  her  suffer  or  perish  in  his  own  house,  or  to 
furnish  the  necessary  aid.  He  pursued  the  latter  course,  and  we  can 
not  doubt  his  right  to  receive  a  compensation. 

The  charge  of  the  court  of  common  pleas  was  to  this  effect,  and  is  # 
in  accordance  with  our  opinion  of  the  law.     The  judgment  of  that 
court  must  be  affirmed." 

1023.  (In  this  and  the  preceding  case  the  statute  made  an  express  provision 
for  emergency  service.)  Board  of  Commissioners  v.  Denebrinlc  (1907)  15  Wyo. 
342,  S9  Pac.  7,  9  L.  R.  A-  (N.  S.)  1234.  Contra :  Caswell  v.  Hazard  (1S73)  10  R. 
I.  490. 

Compare  French  v.  Benton  (1862)  44  N.  H.  28,  and  Gonrley  v.  Allen  (1S25) 
5  Cow.  (N.  Y.)  G44,  where  a  recovery  was  denied  in  accordance  with  the  doc- 
trine advanced  in  Houghton  v.  Town  of  Danville.     See  following  note. 

80  Accord:  Seagraves  v.  Alton  (1851)  13  111.  366;  Eckman  v.  Township  of 
Brady  (1890)  81  Mich.  70,  45  N.  W.  502. 

Contra :  Houghton  v.  Town  of  Danville  (1838)  10  Vt.  537 ;  Patrick  v.  Town 
of  Baldwin  (1901)  109  Wis.  342,  85  N.  W.  274,  53  L.  R.  A.  613. 

In  Houghton  v.  Town  of  Danville,  supra,  the  court  said :  "These  general 
expressions  in  the  statute,  declaring  it  the  duty  of  towns  to  sustain  their  own 
and  the  transient  poor,  create  no  legal  obligation.  The  result  is,  that  the 
question  of  who  are  the  proper  subjec-ts  for  relief.  Is  always  to  be  decided 
by  the  overseers  only ;   that  they  alone  are  to  decide  who  are  to  receive  relief 


470  BENEFITS  WITHOUT   CONTRACT  (Ch.  4 

FORSYTH  V.  GANSON. 
(Supreme  Court  of  New  York,  1S30.    5  Wend.  558,  21  Am.  Dec.  241.) 

This  was  an  action  of  assumpsit,  tried  at  the  Livingston  circuit  in 
May,  1828,  before  the  Hon.  John  Birdsall,  then  one  of  the  circuit 
judges. 

The  action  was  brought  for  the  support  and  maintenance  of  Esther 
Ganson,  the  mother  of  the  plaintiff,  and  the  step-mother  of  the  in- 
testate. It  appeared  when  the  father  of  the  intestate  married  Esther 
Ganson,  she  was  possessed  of  property  to  some  considerable  amount; 
in  1804,  tlie  father  of  the  intestate  bought  a  place  and  went  into  the 
business  of  tavern  keeping;  his  sons,  John  tlie  intestate  and  James 
the  administrator,  lived  with  him  after  they  arrived  of  age  and  car- 
ried on  business  together.  In  1811,  a  division  was  made  of  all  the 
property  between  John  and  James,  John  receiving  $1,000  more  than 
his  brother,  and  agreeing  to  support  his  father  and  step-mother,  and 
accordingly  did  so  until  the  death  of  his  father,  which  happened  about 
two  years  after  the  division  of  the  property ;  after  the  death  of  his 
father,  John  refused  to  continue  to  support  his  step-mother,  when  her 
son,  the  plaintiff  in  this  cause,  took  her  to  his  house,  and  now  brought 
his  action  against  the  administrators  of  John,  to  recover  for  her  sup- 
port and  maintenance.  On  the  trial  of  the  cause,  an  admission  of 
James,  the  administrator,  made  since  the  death  of  the  intestate,  prov- 
ing the  whole  case,  was  received  in  evidence,  tliough  objected  to,  but 
the  point  was  reserved.  Independent  of  that  admission,  the  case  was 
established  by  other  evidence.  The  defendant  claimed  a  nonsuit,  which 
was  refused,  and  the  judge  charged  the  jury  to  inquire  whether  a  sum 
of  money  or  other  funds  had  come  to  the  hands  of  the  intestate  for 
the  support  of  Esther  Ganson;  whether  that  fund  had  been  expended; 
or  whether,  for  a  good  consideration,  the  intestate  had  become  liable 
for  the  support  of  Esther  Ganson.  If  they  found  that  no  fund  had 
'been  created,  or  that  it  had  been  expended,  or  that  the  intestate  was 
not  liable  by  contract  for  the  support  of  Esther  Ganson,  then  he  di- 
rected them  to  find  for  the  defendants,  otherwise  for  the  plaintiff.  The 
jury  found  for  the  plaintiff  for  $297.50,  subject  to  the  opinion  of  this 
court  whether  the  action  could  be  maintained  in  the  name  of  the  pres- 
ent plaintiff.    The  verdict  was  now  moved  to  be  set  aide. 

and  support,  and  they  alone  are  to  be  the  alraoners  of  the  public  bounty  or 
charity.  And  if  this  duty  is  wholly  disregarded,  uo  matter  how  pressing  the 
necessity,  or  imperative  the  circumstances,  others  cannot  do  the  duty,  or  af- 
ford the  relief,  and  collect  it  of  the  town." 

As  to  the  right  of  one  county  to  recover  from  anotlier  county  compensation 
for  the  support  of  a  pauper  properly  chargeable  to  the  latter  county,  see  Bris- 
tol V.  New  Britain  (1898)  71  Conn.  201,  41  Atl.  548 ;  Morristown  v.  Hardwick 
(1908)  81  Vt  31,  69  Atl.  152.  As  to  the  statutory  right  of  the  county  to  col- 
lect the  value  of  necessaries  furnished  an  indigent  relative  of  defendant,  see 
McCook  County  v.  Kammoss  (1895)  7  S.  D.  558,  04  N.  W.  1123,  31  L.  R.  A. 
461,  58  Am.  St.  Rep.  854 ;  Tryon  v.  Dornfeld  (1915)  130  Minn.  198,  153  N.  W. 
307,  U  R.  A.  1915E,  844. 


Sec.  2)'  INTENTION  TO   CLAIM   COMPENSATION  4-71 

Sutherland,  J.^*  If  tlie  plaintiff  can  recover  at  all,  it  must  be  on 
the  ground  that  the  intestate,  John  Ganson,  was  legally  bound  to  sup- 
port his  step-mother,  Esther  Ganson,  and  that  having  refused  to  pro- 
vide for  her,  the  law  implies  a  promise  on  his  part  to  pay  the  plain- 
tiff whatever  he  has  necessarily  expended  in  her  support.  There  is 
no  evidence,  either  of  a  request  on  the  part  of  the  intestate  to  the  plain- 
tiff to  provide  for  Esther  Ganson,  or  of  any  express  promise  to  pay 
him  for  supporting  her.  The  jury,  by  their  verdict,  have  found  that 
the  intestate  either  had  funds  in  his  hands  which  he  was  bound  to 
apply  to  the  support  of  his  step-mother,  or  that  upon  a  good  consid- 
eration he  had  promised  to  provide  for  her ;  and  I  think  the  verdict 
is  warranted  by  the  evidence  in  the  case. 

After  the  father  had  given  up  all  his  property  to  his  sons  John  and 
James,  and  they  had  divided  it  between  them,  Timothy  Beckus  testifies 
that  James,  speaking  of  the  division  to  John,  said,  "I  consider  that  I 
have  given  you  $1,000  the  best  of  the  bargain.  I  have  had  a  family 
while  you  have  had  none,  and  I  expect  the  old  people  will  remain  with 
you."  James  made  no  reply ;  but  that  he  understood  that  he  was  to 
support  his  father  and  step-mother  is  shewn  by  the  testimony  of  Ed- 
ward Waterous,  who  states  that  after  the  division  between  John  and 
James,  he  heard  John  say  that  the  old  people  were  to  live  with  him. 
They  accordingly  did  remain  with  him  during  his  father's  life,  and  the 
step-mother  remained  some  time  afterwards  without  any  objection  or 
complaint  on  the  part  of  the  intestate.  John  Hascal  also  testified 
that  he  heard  the  father  say  in  John's  presence  that  he  had  given  up 
all  his  property  to  him,  and  that  he  was  to  maintain  him  and  his  wife; 
and  the  same  witness  further  stated  that  he  had  heard  a  great  deal  of 
conversation  in  the  Ganson  family  about  their  property,  and  that  he 
understood  from  such  conversation  that  John  was  to  support  the  old 
people.  This  evidence  warrants  the  conclusion  that,  in  the  division  of 
the  property  of  the  father  between  the  sons,  the  support  of  the  par- 
ents was  taken  into  consideration  in  the  portion  allotted  to  John,  and 
that  he  undertook,  in  consideration  of  an  extra  allowance  then  made 
to  him,  to  take  care  of  and  provide  for  the  old  people  during  their 
lives.     ♦     *     * 

The  remaining  inquiry  is,  (admitting  the  intestate  to  have  been  legally 
bound  to  support  Mrs.  Ganson,)  whether  this  action  can  be  maintained 
in  the  name  of  the  present  plaintiff.  I  am  of  opinion  that  it  can.  It 
appears  to  me  to  be  analogous  to  the  case  of  necessaries  furnished  to 
a  wife  or  infant  child  for  whom  the  husband  or  father  improperly 
neglects  or  refuses  to  provide.  In  such  cases  the  law  raises  an  im- 
plied promise,  on  the  part  of  the  husband  and  father,  to  pay  for  such 
necessaries.  Baker  v.  Barney,  8  Johns.  72,  5  Am,  Dec.  326 ;  Van 
Valkinburgh  v.  Watson,  13  Johns.  480,  7  Am.  Dec.  395 ;  Oatfield  v. 
Waring,  14  Johns.  188;    1  Esp.  270;    2  Esp.  739;    3  Esp.  1;    1  H. 

«i  A  portion  of  the  opinion  is  omitted. 


472  BENEFITS   WITHOUT   CONTRACT  (Ch.  4 

Black.  90 ;  3  Bos.  &  Pul.  252 ;  5  Bos.  &  Pul.  148 ;  Edwards  v.  Davis, 
16  Johns.  281.  In  Mure  v.  Craig,  5  Bos.  &  Pul.  148,  the  husband  had 
expressly  covenanted  with  A.,  as  trustee  for  his  wife,  to  pay  his  wife 
a  weekly  allowance  of  five  shillings;  the  wife  lived  with  A.,  and  the 
husband  having  neglected  to  pay  the  stipulated  sum,  A.  brought  an  ac- 
tion of  indebitatus  assumpsit  against  him  for  board  and  other  neces- 
saries furnished  to  his  wife,  and  the  action  was  sustained,  not  with- 
standing the  express  covenant  on  which  it  was  admitted  the  plaintiff 
might  have  sued. 

The  intestate  in  this  case  being  legally  bound  to  provide  for  Mrs. 
Ganson,  the  services  and  supplies  afforded  to  her  by  the  plaintiff  were 
advantageous  to  the  defendant,  and  may  well  be  considered  as  having 
been  rendered  at  his  request. 

New  trial  denied.** 


ROGERS  V.  PRICE. 
(Court  of  Exchequer,  1829.    3  Tounge  &  J.  28.) 

Assumpsit  by  the  plaintiff  against  the  defendant,  executor  of  Davies, 
for  work  and  labour  as  an  undertaker  and  materials  furnished  for  the 
funeral  of  Davies.    Plea — Non  assumpsit. 

At  the  trial,  which  took  place  before  Gaselee,  J.,  at  the  Hereford 
Summer  Assizes,  1828,  it  appeared  that  the  testator  died  in  Wales,  at 
the  house  of  his  brother,  who,  thereupon,  sent  for  the  plaintiff,  an 
undertaker  residing  at  a  distance.  The  plaintiff  afterwards  furnished 
the  funeral,  and  the  brother  of  the  deceased  attended  it  as  chief  mourn- 
er. It  was  admitted  that  the  funeral  was  suitable  to  the  degree  of  the 
deceased.  Upon  these  facts,  there  being  no  evidence  of  any  contract 
made  by  the  defendant,  or  that  he  knew  of  the  funeral  until  after  it 
had  taken  place :  the  learned  Judge  was  of  opinion  that  the  plaintiff 
was  not  entitled  to  recover,  and  directed  a  nonsuit,  with  leave  to  enter 

82  Contra ;  Moody  v.  Moody  (1837)  14  Me.  307 ;  Matheny  v.  Chester  (1911) 
141  Ky.  790,  133  S.  W.  754.  In  Moody  v.  Moody,  supra,  the  court  said :  "It 
may  have  been  supposed,  that  there  existed  some  analogy  between  this  case, 
and  that  of  a  wife  forced  by  the  ill  usage  of  the  husband  to  leave  his  dwelling, 
and  carrying  with  her  a  right  to  charge  him  with  her  support,  by  obtaining 
it  from  another  person.  There  is  no  such  analogy  of  legal  rights.  The  case 
of  the  wife  depends  upon  the  peculiar  relations  of  husband  and  wife.  She 
is  entitled  by  law  to  a  support,  and  if  unable  to  obtain  it  from  the  husband, 
she  can  maintain  no  suit  against  him  to  recover  damages,  or  to  obtain  the 
means  of  compensating  another  for  necessaries  supplied.  Considering  that 
for  many  purposes  husband  and  wife  are  to  be  regarded  as  one  person,  the 
law,  under  such  circumstances,  implies  that  her  contracts  are  the  contracts 
of  the  husband,  for  the  purpose  of  affording  her,  in  the  only  way  in  which  it 
can  be  done,  the  necessaries  of  life  at  the  charge  of  the  person  by  law  obliged 
to  afford  them.  There  is  no  such  relation,  nor  any  such  necessity  in  this 
case;  and  the  law  will  imply  no  such  contract.  The  person  entitled  to  sup- 
port may,  in  his  own  name,  enforce  his  rights,  and  obtain  the  means  of  ful- 
filling his  own  contracts  with  others." 


Sec.  2)  INTENTION  TO   CLAIM  COMPENSATION  473 

a  verdict  for  the  plaintiff  for  30/.,  if  this  Court  should  think  him  en- 
titled to  recover. 

A  rule  nisi  was  obtained. 

Garrow,  B.'^  It  would,  in  my  opinion,  have  been  more  satisfactory, 
if  this  case  had  been  submitted  to  the  consideration  of  a  jury,  to  in- 
quire upon  whose  credit  the  funeral  was  provided;  but,  that  course 
not  having  been  pursued,  we  must  dispose  of  this  rule  in  its  present 
form.  I  am  of  opinion  that  the  plaintiff  is  entitled  to  recover,  and  that 
therefore  this  rule  must  be  made  absolute.  The  simple  question  is,  not- 
withstanding many  ingenious  views  of  the  case  have  been  presented, 
who  is  ans^^erable  for  the  expenses  of  the  funeral  of  this  gentleman. 
In  my  opinion,  the  executor  is  liable.  Suppose  a  person  to  be  killed 
by  accident  at  a  distance  from  his  home ;  what,  in  such  a  case,  ought  to 
be  done?  The  common  principles  of  decency  and  humanity,  the  com- 
mon impulses  of  our  nature,  would  direct  every  one,  as  a  preliminary 
step,  to  provide  a  decent  funeral,  at  the  expense  of  the  estate ;  and  to 
do  that  which  is  immediately  necessary  upon  the  subject,  in  order  to 
avoid  what,  if  not  provided  against,  may  become  an  inconvenience  to 
the  public.  Is  it  necessary  in  that  or  any  other  case  to  wait  until  it 
can  be  ascertained  whether  the  deceased  has  left  a  will,  or  appointed 
an  executor ;  or,  even  if  the  executor  be  known,  can  it,  where  the  dis- 
tance is  great,  be  necessary  to  have  communication  with  that  executor 
before  any  step  is  taken  in  the  performance  of  those  last  offices  which 
require  immediate  attention  ?  It  is  admitted  here  that  the  funeral  was 
suitable  to  the  degree  of  the  deceased,  and  upon  this  record  it  must  be 
taken  that  the  defendant  is  executor  with  assets  sufficient  to  defray 
this  demand;  I  therefore  think  that,  if  the  case  had  gone  to  the  jury, 
they  would  have  found  for  the  plaintiff,  and  that  therefore  this  rule 
should  be  made  absolute.'* 


8»  The  concurring  opinions  of  Hullock,  B.,  and  Vaughn,  B.,  are  omitted. 

8*  In  Patterson  v.  Patterson  (1875)  59  N.  Y.  574,  17  Am.  Rep.  384,  Folger, 
J.,  speaking  for  the  court,  said :  "I  have  no  doubt  but  that  the  reasonable 
and  necessary  expenses  of  the  interment  of  the  dead  body  of  one  deceased  are 
a  charge  against  his  estate,  though  not  strictly  a  debt  due  from  him.  The 
ground  of  this  is  the  general  right  of  every  one  to  have  decent  burial  after 
death ;  which  implies  the  right  to  have  his  body  carried,  decently  covered, 
from  the  place  where  it  lies  to  a  cemetery  or  other  proper  inclosure,  and  there 
put  under  ground.  *  *  *  And  where  the  owner  of  some  estate  dies,  the 
duty  of  the  burial  is  upon  the  executor.  Toller,  Ex'rs,  245,  bk.  3,  c.  1,  §  1. 
And  our  Revised  Statutes  (2  Rev.  St.  [1st  Ed.]  71,  pt.  2,  c.  6,  tit.  2,  §  16, 
recognize  this  duty,  in  that  the  executor  is  prohibited  from  any  interference 
with  the  estate  until  after  probate,  except  that  he  may  discharge  the  funeral 
expenses.  From  this  duty  springs  a  legal  obligation,  and  from  the  obUgation 
the  law  implies  a  promise  to  him  who,  in  tlie  absence  or  neglect  of  the  execu- 
tor, not  officiously,  but  in  the  necessity  of  the  case,  directs  a  burial  and  in- 
curs and  pays  such  expense  thereof  as  is  reasonable.  Tugwell  v.  Heymau,  3 
Campb.  298.  It  is  analogous  to  the  duty  and  obligation  of  a  father  to  furnish 
necessaries  to  a  child,  and  of  a  husband  to  a  wife,  from  which  the  law  im- 
plies a  promise  to  pay  him  who  docs  what  the  father  or  the  husband  in  that 
respect  omits.  *  *  *  The  decent  burial  of  the  dead  is  a  matter  in  which 
the  public  have  concern.     It  is  against  the  public  health  if  it  do  not  take 


474  BENEFITS   WITHOUT   CONTRACT  (Ch.  4 

JENKINS  V.  TUCKER. 

(Court  of  Common  Pleas,  17S8.     1  H.  Bl.  90.) 

The  defendant  married  the  plaintiff's  daughter;  and  some  time  after 
the  marriage  went  to  Jamaica,  leaving  her  and  an  infant  child  in  Eng- 
land. During  his  absence  she  died ;  and  this  action  was  brought  by 
her  father  against  the  husband,  to  recover  the  money  which  he  had  ex- 
pended after  her  death,  in  discharging  debts  which  she  had  contracted 
while  her  hijsband  was  in  Jamaica,  (by  living  with  her  child  in  a  man- 
ner suitable  to  her  husband's  fortune,)  and  in  defraying  the  expences 
of  her  funeral,  which  were  also  proportioned  to  the  husband's  fortune 
and  station.  The  declaration  was  in  the  usual  form,  for  necessaries 
and  funeral  expenses,  with  the  common  money  counts.  The  defendant 
paid  ilOO  into  court,  and  pleaded  non  assumpsit  as  to  the  residue. 

At  the  trial,  the  evidence  on  the  part  of  the  plaintiff  proved,  that  the 
defendant  was  possessed  of  a  large  estate  in  Jamaica ;  that  he  lived 
with  his  wife  till  he  went  thither;  that  he  left  her  in  bad  health,  and  , 
much  in  want  of  money;  that  after  her  death  the  plaintiff  paid  the 
debts  which  she  had  incurred  in  the  absence  of  the  defendant,  and  her 
funeral  expences. 

To  this  evidence  tlie  counsel  for  the  defendant  demurred. 

Lord  Loughborouh.^'*  This  demurrer  to  evidence  strikes  me  as 
being  extremely  absurd,  since  by  payment  of  money  into  court,  the 
defendant  admits  a  cause  of  action,  (so  that  where  money  is  paid  into 
court,  there  can  be  no  such  thing  as  a  nonsuit) ;  and  also,  because  it 
was  for  the  jury  to  determine  the  quantum  of  damages.  The  court 
cannot  anticipate  the  province  of  a  jury,  and  ascertain  damages  on  a 
writ  of  inquiry.  It  was  not  my  intention,  that  any  of  the  debts  con- 
tracted by  the  defendant's  wife,  which  the  plaintiff  discharged  after 
her  death,  should  have  gone  to  the  jury:  but  as  die  counsel  for  the 
defendant  thought  proper  to  demur  to  the  evidence,  the  judgment  on 
the  demurrer  must  be  general.  They  ought  at  the  trial  to  have  con- 
tended for  a  verdict ;  they  seem  to  me  to  have  taken  the  wrong  method 
for  their  client. 

place  at  all  (Rex  v.  Stewart,  supra),  and  against  a  proper  public  sentiment, 
that  it  should  not  take  place  with  decency." 

What  expenditure  may  properly  be  incurred  for  a  funeral  "depends  largely 
upon  the  custom  of  people  of  like  rank  and  condition  in  society  and  the  condi- 
tion of  the  estate  left  by  the  deceased."  O'Reilly  v.  Kelly  (1900)  22  R.  I.  151, 
46  Atl.  681,  50  L.  R.  A.  4S3,  84  Am.  St.  Rep.  833;  McCullough  v.  IMcCready 
(1907)  52  Misc.  Rep.  542,  102  N.  Y.  Supp.  633  (an  extreme  case,  recovery  allow- 
ed for  expenses  of  a  wake). 

Expenses  which  can  be  decently  and  reasonably  postponed  until  the  execu- 
tor qualities,  or  an  administrator  is  appointed,  should  be  so  postponed,  and 
one  who  before  such  appointment  voluntarily  incurs  an  expense  for  which 
there  is  no  immediate  necessity  cannot  compel  the  executor  or  administrator 
to  reimburse  him.  Samuel  v.  Estate  of  Thomas  (1881)  51  Wis.  549,  8  N.  W. 
'6Q1  (sister  of  deceased  ordered  and  paid  for  a  tombstone). 

86  The  concurring  opinions  of  Gould  and  Heath,  JJ.,  are  omitted. 


Sec.  2)  .     INTENTION  TO   CLAIM   COMPENSATION  475 

I  think  there  was  a  sufificient  consideration  to  support  this  action  for 
the  funeral  expences,  though  there  was  neither  request  nor  assent  on 
the  part  of  the  defendant,  for  the  plaintiff  acted  in  discharge  of  a  duty 
which  the  defendant  was  under  a  strict  legal  necessity  of  himself  per- 
forming, and  which  common  decency  required  at  his  hands ;  the  money 
therefore  which  the  plaintiff  paid  on  this  account,  was  paid  to  the  use 
of  the  defendant.  A  father  also  seems  to  be  the  proper  person  to  in- 
terfere, in  giving  directions  for  his  daughter's  funeral,  in  the  absence 
of  her  husband.  There  are  many  cases  of  this  sort,  where  a  person 
having  paid  money,  which  another  was  under  a  legal  obligation  to  pay, 
though  without  his  knowledge  or  request,  may  maintain  an  action  to 
recover  back  the  money  so  paid:  such  as  in  the  instance  of  goods  be- 
ing distrained  by  the  commissioners  of  the  land-tax,  if  a  neighbour 
should  redeem  the  goods,  and  pay  the  tax  for  the  owner,  he  might 
maintain  an  action  for  the  money  against  the  owner. 

Wilson,  J.  If  the  plaintiff  in  this  case  had  declared  as  having  him- 
self buried  the  deceased,  the  husband  clearly  would  have  been  liable; 
and  as  the  case  stands  at  present,  the  plaintiff*  having  defrayed  the  ex- 
pences of  the  funeral,  the  husband  is  in  justice  equally  liable  to  repay 
those  expences,  and  in  him  the  law  will  imply  an  assumpsit  for  that 
purpose. 

Judgment  for  the  plaintiff." 


CUNNINGHAM  v.  REARDON. 

(Supreme  Judicial  Court  of  Massachusetts,  1S68.    98  Mass.  538,  96  Am. 

Dec.  G70.) 

Contract  on  an  account  annexed  for  board  and  lodging  furnished  to 
the  defendant's  wife,  and  money  paid  for  her  funeral  expenses. 

In  the  superior  court  these  facts  were  agreed :  At  the  time  of  her 
death,  in  September,  1864,  the  defendant's  wife  had  been  lodged  and 
boarded  in  the  plaintiff's  house  ever  since  June,  1864,  when  she  was 
brought  there  ill  with  consumption  immediately  after  being  com[)elled 
to  leave  the  defendant  by  his  cruelty.    The  defendant,  tliough  able  to 

38  "Here,  the  mother  of  the  deceased,  and  in  the  presence  of  Mr.  Quin,  the 
husband,  assumed  the  entire  control  of  the  arrangements  for  the  burial ;  send- 
ing for  the  undertaker,  and  directing  him  to  spare  no  expense,  as  it  was  the 
last  thing  she  could  do  for  her  daughter.  This  clearly  showed  an  intention 
on  her  part  to  personally  defray  the  charges.  That  the  undertaker  acted  in 
pursuance  of  her  request,  is  sutiiciently  apparent  from  the  amount  of  the  bill. 
It  is  equally  clear  that  she  was  personally  liable  to  him  for  it.  As  her  daugh- 
ter and  the  husband  were  living  with  her,  and  the  death  occurred  under  her 
roof,  it  was  not  unnatural  that  she  sliould  have  had  something  to  say  in  re- 
gard to  the  funeral  arrangements,  but  she  went  much  farther  than  to  merely 
consult  and  advise ;  she,  officiously  and  in  the  presence  of  the  husband,  as- 
sumed the  whole  direction,  ignoring  his  rights  and  duties  in  the  premises, 
and  thus  relieved  both  him  and  the  estate  of  his  wife  from  the  obligation 
otherwise  Imposed  upon  them  by  law."  Quia  v.  Hill  (1886)  4  DeuL  Sur.  (N.  Y.) 
69. 


476  BENEFITS   WITHOUT   CONTRACT  (Ch.  4 

provide  for  her  support,  refused  to  do  so  after  she  left  him,  and  never 
visited  her  or  soHcited  her  to  return.  When  she  died,  the  plaintiff  pro- 
vided at  reasonable  expense  burial  for  her  remains,  decent  and  suitable 
to  the  defendant's  condition  in  life,  but  without  giving  notice  to  the 
defendant  of  her  death,  as  he  might  easily  have  done. 

It  was  not  disputed  that  her  separation  from  the  defendant  was 
justifiable;  nor  did  he  contest  the  items  of  the  account  for  board  and 
lodging;  but,  as  to  the  items  of  money  paid  for  funeral  expenses,  he 
contended  that  there  was  no  promise  implied  by  law  that  he  should 
reimburse  the  plaintiff  for  his  voluntary  payment  thereof.  But  Put- 
nam, J.,  ordered  judgment  for  the  plaintiff  for  the  full  amount  of  his 
account;  and  the  defendant  appealed. 

Hoar,  J.  The  husband  who  by  his  cruelty  compels  his  wife  to 
leave  him  is  considered  by  the  law  as  giving  her  thereby  a  credit  to 
procure  necessaries  on  his  account;  and  is  responsible  to  any  person 
who  may  furnish  her  with  them.  This  responsibility  extends  not  only 
to  supplies  furnished  her  while  living,  but  to  decent  burial  when  dead. 
Its  origin  is  not  merely  and  strictly  from  the  law  making  her  his  agent 
to  procure  the  articles  of  which  she  stands  in  need.  If  it  were  so,  the 
consequence  would  follow  for  which  the  defendant  contends,  that  the 
agency  would  end  with  the  life  of  the  agent.  But  it  is  rather  an  au- 
thority to  do  for  him  what  law  and  duty  require  him  to  do,  and  which 
he  neglects  or  refuses  to  do  for  himself ;  and  is  applicable  as  well  to 
supplies  furnished  to  the  wife  when  she  is  sick,  insensible  or  insane, 
and  to  the  care  of  her  lifeless  remains,  as  to  contracts  expressly  made 
by  her. 

Nor  is  any  notice  to  him  requisite,  in  order  to  charge  him  for  her 
funeral  expenses,  any  more  than  for  necessaries  to  sustain  life.  The 
burden  is  on  the  plaintiff  in  eitlier  case  to  prove  the  existence  of  the 
necessity,  and  that  the  husband  has  failed  to  make  provision  for  it. 
But  when  this  is  established,  nothing  more  is  needed  to  create  the  lia- 
bility ;  and  it  would  seem  to  be  an  idle  ceremony  to  give  notice  of  his 
wife's  death  to  a  man  who  had  refused  her  the  means  of  sustaining 
life.  The  responsibility  for  funeral  expenses  is  not  a  new  and  distinct 
cause  of  action,  differing  in  kind,  or  in  the  rules  by  which  it  is  created ; 
but  an  incident  to  the  obligation  to  furnish  bodily  support. 
Judgment  for  the  plaintiff  for  the  full  amount  claimed.*' 

87  In  Bradshaw  v.  Beard  (1862)  12  C.  B.  (N.  S.)  344,  142  Eng.  Rep.  1175, 
defendant's  wife  had  left  him  after  a  quarrel  and  had  gone  to  live  with  her 
brother,  the  plaintiff.  On  her  death  plaintiff  paid  the  expenses  of  her  funeral, 
without  any  understanding  or  intimation  from  defendant,  who  knew  of  her 
death,  that  he  would  not  bury  his  wife.  Held,  that  the  defendant  must  re- 
imburse plaintiff  for  the  funeral  expenses. 

In  Gleason  v.  Warner  (1S99)  78  Minn.  405,  81  N.  W.  206,  defendant's  wife 
had  left  him  and  was  suing  him  for  a  divorce,  and  when  she  died  her  rela- 
tives requested  plaintiff,  an  undertaker,  to  embalm  her  body  and  furnish  a 
suitable  casket  and  place  the  same  on  a  train  for  Natchez,  her  former  home. 
The  plaintiff  brought  action  against  defend;; nt  for  the  services  so  rendered. 
The  court  sustained  a  verdict  for  plaintiff,  saying:  "It  is  the  right  and  the  duty 
of  the  husband  to  bury  his  deceased  wife  in  a  suitable  manner.  His  wishes 
in  the  premises  must  be  respected,  and  no  gratuitous  intermeddling  therewith 


Sec.  2)  INTENTION  TO   CLAIM   COMPENSA'JION  477 

•  CONSTANTINIDES  v.  WALSH. 

(Supreme  Judicial  Court  of  Massachusetts,  1888.     146  Mass.  281,  15  N.  E.  631, 

4  Am.  St.  Rep.  311.) 

Contract,  upon  an  account  annexed,  for  the  expenses  of  the  funeral 
of  the  defendant's  testatrix.  Writ  dated  June  18,  1886.  Trial  in  the^ 
Superior  Court,  before  Blodgett,  J.,  who  allowed  a  bill  of  exceptions* 
in  substance  as  follows : 

Louisa  Constantinides,  the  plaintiff's  wife  and  the  defendant's  testa- 
trix, died  on  October  23,  1884,  possessed  of  separate  estate,  all  of 
which  she  gave  to  her  son,  the  step-son  of  the  plaintiff,  by  her  will  ad- 
mitted to  probate  on  November  17,  1884.  The  plaintiff  had  no  knowl- 
edge of  the  will  until  three  weeks  after  her  death,  before  which  time 
he  had  contracted,  and  on  October  27,  1884,  had  paid  a  bill  for  her 
necessary  funeral  expenses,  which  it  was  agreed  was  reasonable.  It 
was  not  contended  that  the  defendant  had,  prior  to  or  after  his  appoint- 
ment, made  any  promise  of  payment. 

The  defendant  asked  the  judge  to  rule  that  the  plaintiff  could  not 
recover,  and  the  judge  so  ruled,  and  ordered  a  verdict  for  the  defend- 
ant;  and  the  plaintiff  alleged  exceptions. 

Holmes,  J.  The  funeral  expenses  of  the  testatrix  were  a  preferred 
•charge  upon  her  estate.  Pub.  St.  c.  135,  §  3;  Id.  c.  137,  §  1,  St.  1882, 
c.  141.  Under  these  statutes,  and  those  establishing  the  independent 
position  of  married  women  with  regard  to  their  property,  we  think  that, 
as  between  the  estate  of  a  married  woman  leaving  property  and  her 
husband,  the  liability  of  the  estate  must  be  regarded  as  primary,  and 
that  it  would  be  unreasonable  to  charge  the  husband  for  the  funeral 

by  third  parties  will  be  encouraged.  But,  If  the  husband  neglects  to  discharge 
the  duty  of  burying  his  dead  wife,  he  Is  liable  to  one  who  provides  for  her 
necessary  and  reasonable  burial.  Schouler,  Dom.  Rel.  §  199.  This  liability 
is  similar  to  the  obligation  of  the  husband  to  supply  his  ^vife  with  necessaries 
in  life ;  lor  when  dead  the  necessity  for  the  speedy  burial  of  her  body  is  press- 
ing and  Imperative,  brooking  no  delay.  Hence,  if  the  husband  is  absent  and 
cannot,  or  if  present  and  will  not,  discharge  this  duty,  the  law  implies  a  re- 
quest on  his  part  to  do  so  to  whoever  reasonably  performs  the  duty  for  him. 
It  therefore  follows  that  if  the  finding  of  the  trial  court  to  the  effect  that  the 
defendant  was  seasonably  notified  of  the  death  of  his  wife,  and  that  he  neg- 
lected to  take  any  steps  to  prepare  her  body  for  burial,  is  sustained  by  the 
evidence,  the  defendant  is  liable  to  the  plaintiff  for  the  reasonable  value  of  the 
casket  and  his  services  as  an  undertaker.  •  *  ♦  This  is  not,  as  claimed,  a 
case  where  the  reasonable  wishes  and  efforts  of  the  husband  to  give  his  dead 
wife  a  burial,  becoming  his  and  her  station  in  life  and  his  financial  circum- 
stances, have  been  thwarted  by  the  officious  intermeddling  of  his  \^'ife's  rela- 
tions, aided  by  the  plaintiff.  The  plaintiff  simply  acted  in  good  faith  upon  the 
request  of  the  attorney  and  niece  of  the  wife,  in  the  absence  of  any  action  on 
the  part  of  her  husband.  If  defendant  was  seasonably  notified  of  the  death 
of  his  wife,  It  was  his  duty  to  take  prompt  action  to  secure  the  decent  and 
reasonable  burial  of  her  remains.  His  attorney  claims  for  him  that  he  did  not 
have  such  notice.  This  is  the  pivotal  point  in  this  case;  for,  unless  he  knew 
or  ought  to  have  known  that  his  wife  was  dead,  he  cannot  be  charged  with 
any  neglect  of  duty  in  the  premises."  (The  court,  Qfter  reviewing  the  evi- 
dence, sustained  the  finding  of  the  trial  court  that  there  was  such  notice.) 


478  BENEFITS  WITHOUT   CONTRACT  (Ch.  4 

expenses,  in  all  events,  as  necessaries,  irrespective  of  any  fault  on  his 
part.  If,  then,  it  was  still,  as  formerly,  the  plaintiff's  legal  duty  to  see 
that  his  wife  was  buried,  but  her  estate  was  primarily  liable,  he  is  en- 
titled to  recover  his  reasonable  expenditures,  as  in  other  cases  where  a 
person  has  paid,  in  pursuance  of  a  legal  duty,  what,  as  between  himself 
and  another,  that  other  was  bound  to  pay.  There  is  no  technical  diffi- 
culty in  a  husband's  imposing  a  liability  upon  his  wife's  executor  after 
her  death. 

If  it  was  not  the  plaintiff's  legal  duty  to  do  what  he  did,  nevertheless 
we  are  of  opinion  that  he  stood  on  no  worse  ground  than  a  stranger 
would  have  done.  A  stranger  could  have  recovered  against  the  estate 
of  a  man,  if  he  was  justified  in  intermeddling.  Sweeney  v.  Muldoon, 
139  Mass.  304,  306,  31  N.  E.  720,  52  Am.  Rep.  708.  And  formerly,  in 
the  case  of  a  married  woman,  he  could  have  recovered  against  her  hus- 
band. Lakin  v.  Ames,  10  Cush.  198,  221 ;  Weld  v.  Walker,  130  Mass. 
422,  423,  29  Am.  Rep.  465;  Bradshaw  v.  Beard,  12  C.  B.  (N.  S.)  344. 
Undoubtedly  he  could  now  recover  against  her  estate.  If  so,  the  hus- 
band can.  In  such  a  matter  it  is  not  to  be  presumed  that  the  husband 
waives  his  legal  rights,  and  makes  a  gift  to  the  estate  of  his  wife,  in 
the  absence  of  any  expression  or  other  evidence  to  that  effect  Ex- 
ceptions sustained.** 


MANHATTAN  FIRE  ALARM  CO.  v.  WEBER. 

(Supreme  Court  of  New  York,  Appellate  Term,  1S98.    22  Misc.  Rep.  729,  50 

N.  Y.  Supp.  42.) 

Appeal  from  First  District  Court. 

Action  by  the  Manhattan  Fire  Alarm  Company  against  Joseph 
Weber  and  Lewis  Fields.  From  a  judgment  in  favor  of  defendants, 
plaintiff  appeals. 

GiEGERiCH,  J.">  On  the  1st  day  of  September,  1896,  the  defend- 
ants became  the  lessees  of  a  certain  music  hall  or  theater  in  the  city  of 
New  York,  in  which  plaintiff  had  theretofore  installed,  for  a  former 
lessee,  five  fire-alarm  boxes.  These  remained  upon  the  premises  until 
the  16th  day  of  September,  1897,  when  they  were  removed  by  the 
plaintiff,  who  seeks  to  recover  for  having  maintained  such  service  dur- 
ing the  period  mentioned.  The  defendants  contest  the  claim,  on  the 
ground  that  neither  of  them  requested  the  service,  and  merely  suffered 
the  alarm  signals  to  remain  upon  the  premises  pending  plaintift''s  at- 
tempt to  secure  from  them  a  contract  for  their  maintenance  in  the 

38  Accord :  SRillman  v,  Wilson  (1910)  146  Iowa,  601,  125  N.  W.  343,  140  Am. 
St.  Rep.  295  (two  judges  dissenting). 

Contra :  Smvley  v.  Reese  (1875)  53  Ala.  89,  25  Am.  Rep.  598 ;  Stonesifer  v. 
Shriver  (1904)  100  Md.  24,  59  Atl.  139. 

•»  A  portion  of  the  opinion,  reviewing  the  evidence.  Is  omitted. 


Sec.  2)  INTENTION  TO   CLAIM   COMPENSATION  479 

future.  Plaintiff,  while  conceding  that  the  defendants  did  not  express- 
ly assent  to,  or  promise  to  pay  for,  a  continuation  of  the  service,  never- 
theless bases  its  right  to  recover  upon  the  theory  that  the  facts  and  cir- 
cumstances of  the  case  bring  it  w^ithin  the  rule  that  where  one  volun- 
tarily accepts  and  avails  himself  of  valuable  services,  rendered  for  his 
benefit,  when  he  has  the  option  to  accept  or  reject  them,  with  knowl- 
edge that  the  party  rendering  the  same  expects  payment  therefor,  a 
promise  to  pay  may  be  inferred  even  without  distinct  proof  that  they 
were  rendered  at  his  request.  Lawson,  Cont.  §  34;  Benj.  Cont.  18;  1 
Pars.  Cont.  (8th  Ed.)  486;  Day  v.  Caton,  119  Mass.  513,  20  Am.  Rep. 
347 ;  Davidson  v.  Gaslight  Co.,  99  N.  Y.  559,  566,  2  N.  E.  892.  The 
difficulty  with  this  position,  however,  is  that  the  testimony  upon  which 
iris  based  was  contradicted.     *     *     * 

It  will  be  seen  from  the  foregoing  narration  of  the  testimony  that 
the  main  question  presented  for  solution  was  one  of  fact.  There  was 
sufficient  evidence  in  the  case  to  support  a  finding  either  way.  But  it 
was  the  function  of  the  trial  justice  to  determine  on  which  side  the 
weight  of  the  evidence  inclined,  or  that  the  evidence  did  not  preponder- 
ate in  favor  of  the  plaintiff;  and,  having  found  for  the  defendant  upon 
a  conflict  of  evidence,  we  should  not  disturb  his  conclusions.  Weiss  v. 
Strauss  (Com.  PI.)  14  N.  Y.  Supp.  776;  Lynes  v.  Hickey,  4  Misc.  Rep. 
522,  24  N.  Y.  Supp.  731.  The  plaintiff  could  at  any  time  have  discon- 
tinued the  service  by  disconnecting  the  wires,  and  so  rendering  the  ap- 
paratus worthless ;  but  it  did  not  see  fit  to  do  so,  and  merely  because 
of  such  omission  it  cannot  impose  a  liability  on  tlie  defendants,  in  the 
absence  of  their  request  to  maintain  it. 

Plaintiff  further  contends  that  the  defendants  were  under  a  legal 
duty  to  maintain  upon  their  premises  an  apparatus  such  as  it  had  in- 
stalled there,  and  we  infer  therefrom  that  the  rule  invoked  is  that  where 
an  obligation  is  imposed  by  law  upon  one  to  do  an  act,  because  of  the 
interest  which  the  public  has  in  its  performance,  and  he  fails  to  per- 
form it,  another  who  performs  it  with  the  expectation  of  receiving 
compensation  should  be  allowed  to  recover  against  the  former.  Keen- 
er, Quasi  Cont.  p.  341.  The  burden,  however,  is  on  the  person  making 
such  a  claim  to  establish  the  necessity  for  his  intervention,  as  well  as 
that  the  act  done  should  have  been  performed  by  the  person  from 
whom  recovery  is  sought.    Id.  p.  347. 

In  Keener  on  Quasi  Contracts  (page  349)  the  learned  author  says : 
"To  charge  a  defendant  for  services  rendered  in  the  discharge  of  an 
obligation  which  he  (the  defendant)  should  have  performed,  the  plain- 
tiff must  establish  a  necessity  for  his  (the  plaintift"'s)  action.  In  a  case 
where  the  reason  for  the  appeal  to  the  plaintiff  is  the  fact  that  the 
defendant  has  failed  in  his  obligation,  then  no  notice  is  necessary.  If, 
however,  the  defendant  has  not  refused  to  discharge  his  obligation,  and 
his  failure  to  act  has  been  due  to  his  want  of  opportunity,  he  must,  if 
he  is  in  a  position  to  act,  be  given  the  opportunity  before  any  one  will 
be  justified  in  acting  in  his  stead." 


480  BENEFITS   WITHOUT   CONTRACT  (Ch.  4 

The  consolidation  act,  among  other  things,  provided  that :  "The  own- 
ers or  proprietors  of  all  *  *  *  theaters  and  music  halls  *  *  ♦ 
shall  provide  such  means  of  communicating  alarms  of  fire,  accident,  or 
danger  to  the  police  and  fire  departments,  respectively,  as  the  board 
of  fire  commissioners  or  the  board  of  police  commissioners  may  di- 
rect."   Laws  1882,  c.  410,  §  454,  as  amended  by  Laws  1892,  c.  703,  §  1. 

There  was  no  direct  proof  that  the  public  authorities  ever  adopted 
plaintiff's  system,  but  it  is  fairly  deducible  from  the  letter  of  February 
19,  1897,  that  it  had  been  installed  in  some  of  the  theaters  in  the  city 
of  New  York  by  their  consent.  There  is  no  pretense  whatever  that 
the  plaintiff's  system  was  the  only  one  which  had  received  official  sanc- 
tion during  the  period  plaintiff  claims  to  have  maintained  the  service, 
and  therefore  the  defendants  were  not  confined  in  their  choice  to  the 
service  furnished  by  the  plaintiff.  Moreover,  the  record  fails  to  dis- 
close whether  or  not  any  other  fire-alarm  system  was  provided  by  the 
defendants  during  the  period  in  question.  But,  aside  from  this,  there 
was  no  necessity  for  the  plaintiff  to  maintain  its  service  upon  the  de- 
fendants' premises,  as  the  public  authorities  had  ample  power  to  com- 
pel the  defendants  to  discharge  the  duty  which  the  law  imposed  (Laws 
1882,  c.  410,  §  465,  as  amended  by  Laws  1892,  c.  703,  §  3) ;  and  hence, 
even  though  the  evidence  might  have  justified  the  inference  that  the 
plaintiff  expected  to  be  remunerated  for  maintaining  the  service,  it  can- 
not recover  upon  the  ground  that  it,  in  the  public's  interest,  discharged 
an  obligation  imposed  by  law  upon  tlie  defendants  (Keener,  Quasi 
Cont.  pp.  344,  347;  Force  v,  Haines,  17  N.  J.  Law,  385). 

For  these  reasons,  to  my  mind,  the  judgment  should  be  affirmed, 
with  costs.    All  concur. 


MACCLESFIELD  CORPORATION  v.  GREAT  CENTRAL 

RAILWAY. 

(Court  of  Appeals.     [1911]  2  K.  B.  528.) 
Appeal  from  the  judgment  of  a  Divisional  Court  (Phillimore  and 
Horridge,  J  J.)  reversing  a  decision  of  the  judge  of  tlie  Macclesfield 
County  Court. 

Under  the  provisions  of  '7  Geo.  IV,  c.  30,  a  canal  had  been  construct- 
ed by  a  canal  company,  which  canal  had,  before  the  proceedings  giving 
rise  to  the  present  action,  vested  in  the  defendants  subject  to  the  obli- 
gations imposed  by  tliat  statute  upon  the  original  undertakers.  In 
making  the  canal  the  undertakers  cut  through  and  across  a  public  high- 
way, and  built  a  new  bridge  over  the  canal  so  constructed  in  order  to 
carry  the  highway  over  it.  In  1907  the  plaintiffs,  who  were  the  high- 
way authority,  requested  the  defendants  to  repair  the  roadway  on  the 
bridge,  but  the  defendants  refused  on  the  ground  that,  although  they 
were  liable  to  repair  the  fabric  of  the  bridge,  they  were  under  no  ob- 
ligation, statutory  or  otherwise,  to  repair  the  roadway  upon  it.  The 
roadway  being  dangerous  if  not  repaired,  the  plaintiffs,  as  the  highway 


Sec.  2)  INTENTION  TO   CLAIM   COMPENSATION  481 

authority,  executed  the  necessary  repairs  at  a  cost  of  18s.  5d.,  and 
brought  the  present  action  to  recover  that  amount.  The  county  court 
judge  gave  judgment  for  the  plaintiffs  and  gave  leave  to  appeal.  The 
Divisional  Court  held  that  the  statute  imposed  on  the  defendants  no 
liabiUty  to  repair  the  roadway  over  the  bridge  and  reversed  the  decision 
of  the  county  court  judge.    The  plaintiffs  appealed. 

Kennedy,  L.  J.*"  I  have  come  to  the  same  conclusion,  both  on  the 
reasoning  on  vi^hich  this  case  must  be  decided  and  on  the  authorities 
which  have  been  so  fully  dealt  with  by  my  learned  brethren ;  I  need  add 
but  a  few  words  in  expressing  my  concurrence. 

Upon  the  question  of  construction,  I  think  tliat  the  true  view  is  that 
contended  for  by  the  plaintiffs.*^     *     *     * 

Assuming  the  question  of  construction  to  be  decided  in  favour  of 
the  plaintiffs,  the  difficulty  which  I,  in  common  with  the  other  mem- 
bers of  the  Court,  feel  to  be  insuperable  is  the  difficulty  of  finding  legal 
grounds  upon  which,  having  done  work  which  they  were  not  bound 
to  do,  the  local  authority  can  recover.  If  it  could  have  been  shewn 
that  the  plaintiffs  were  legally  compellable  to  do  the  work,  I  should  say 
that,  having  been  compelled  to  do  something  which  the  railway  com- 
pany ought  to  have  done  the  plaintiffs  might  recover  ;*  but  the  authori- 
ties, as  Farwell,  L.  J.,  has  pointed  out,  are  clear  to  shew  that  it  would 
be  a  sufficient  defence  in  a  case  of  this  kind,  were  proceedings  taken 
against  the  local  authority  for  non-repair  of  the  roadway  passing  over 
the  bridge,  to  shew  that  Parliament  by  this  private  Act  in  a  section 
which,  so  far  as  regards  the  portion  with  which  we  are  concerned, 
has  to  be  construed  for  the  public  benefit,  not  for  the  benefit  merely  of 
an  individual  or  a  set  of  private  individuals,  has  ordered  that  the  repair 
is  to  be  done  by  the  company.  In  such  a  case  it  could  have  been  plead- 
ed as  a  defence  to  proceedings  against  the  local  authority  that  the  bur- 
den had  been  thrown  upon  another  body,  and  therefore  the  common 
law  liability  had  been,  as  it  were,  extinguished  by  the  will  of  Parlia- 
ment. Not  being  under  a  statutory  obligation  to  pay  for  or  to  do  the 
work,  this  local  authority  has  done  the  work  and  incurred  expense  in 
doing  it,  and  I  do  not  know  the  legal  principle  upon  which  in  those 
circumstances  they  can  throw  the  burden  upon  some  one  else  who 
ought  in  the  first  instance  to  have  done  the  work,  and  who  therefore 
is  in  a  position  to  say  "You  who  seek  to  recover  this  payment  from 
me  have  acted  as  volunteers."  In  those  circumstances  it  appears  to  me 
that  on  one  of  the  grounds  taken  by  the  Divisional  Court,  whilst  I 
should  not  assent  to  tlie  main  reason  upon  which  the  judgment  proceed- 
ed, their  decision  was  sound,  and  therefore  we  must  dismiss,  this  appeal. 

Appeal  dismissed.*^ 

*o  The  concurring?  opinions  of  Vanghan  Williams  and  Farwell,  L.  JJ.,  as 
well  as  a  portion  of  the  opinion  of  Kennedy,  L.  J.,  are  omitted. 

*i  The  plaintiffs'  contention  was  that  statute  Imposed  on  defendants  the  duty 
to  keep  the  entire  bridise  in  repair. 

♦See  Inhalntants  of  Berlin  v.  School  Society,  page  4S9,  infra. 

*2  See  25  Harvard  Law  Review,  77. 
TnuBS.QuAsi  CoNT. — 31 


482  BENEFITS  WITHOUT   CONTRACT  (Ch.  4 

MUMFORD  V.  BROWN. 

(Supreme  Court  of  New  York,  1S26.     6  Cow.  475,  16  Am.  Dec.  440.) 

On  error  from  the  Seneca  C.  P.  Brown  sued  Mumford  before  a  jus- 
tice, for  money  paid  and  work  done,  in  repairing  certain  premises  of 
which  the  parties  were  tenants  in  common.  The  former  recovered ; 
and  tlie  latter  appealed  to  the  C.  P.  where  the  former  also  recovered ; 
on  this  state  of  facts,  presented  upon  bill  of  exceptions :  the  parties 
being  tenants  in  common  of  a  lot,  the  plaintiff  below  made  a  board 
fence  on  the  rear,  where  an  old  fence  had  rotted  down.  The  new 
fence  was  a  substantial  benefit ;  and  the  lot  would  produce  as  much 
additional  rent,  as  would  pay  for  the  repairs.  When  the  plaintiff  made 
the  repairs,  he  was  in  actual  possession  of  the  lot,  under  a  lease  for  one 
year  from  the  defendant,  of  his  half,  at  a  stipulated  rent.  The  defend- 
ant lived  about  3  miles  distance  from  the  premises ;  and  was  often  in 
the  village  where  they  lay.  No  express  request  for,  assent  to,  or  prom- 
ise to  pay  for  the  repairs  on  the  part  of  the  defendant  was  proved ; 
nor  did  it  appear  that,  before  making  the  repairs,  the  plaintiff  had  re- 
quested the  defendant  to  make  his  share  of  them.  The  plaintiff  claimed 
to  recover  one  half  the  value  of  the  repairs.  The  defendant  moved  the 
C.  P.  for  a  nonsuit,  which  they  denied.  Verdict  and  judgment  for  the 
plaintiff  below. 

Savage,  C.  J.  Clearly,  the  defendant  below  was  not  liable  as  land- 
lord. It  is  not  in  the  power  of  a  tenant  to  make  repairs  at  the  expense 
of  his  landlord,  unless  there  be  a  special  agreement  between  them,  au- 
thorizing him  to  do  this.  The  tenant  takes  the  premises  for  better  and 
for  worse ;  and  cannot  involve  his  landlord  in  expense  for  repairs,  with- 
out his  consent. 

It  is,  however,  a  different  question,  whether  the  defendant  below 
was  not  liable  as  tenant  in  common,  for  such  repairs  as  were  necessary 
to  preserve  the  property. 

The  ancient  mode  of  proceeding,  by  one  tenant  in  common  against 
his  co-tenant,  who  refused  to  repair,  was  by  writ,  de  reparatione  fa- 
cienda,  a  remedy  which,  probably,  still  exists.*^  A  recovery  could  be 
had  by  this  writ  only  in  case  of  refusal  to  repair;  and  admitting  that 
the  action  of  assumpsit  has  superseded  the  ancient  proceeding,  should 
not  the  plaintiff  below  have  shewn  a  request  and  refusal?  In  Doane  v. 
Badger,  12  Mass.  65,  it  was  decided  that  one  claiming  a  privilege  in  a 
well  and  pump,  situate  in  the  land  of  another,  each  being  bound  to 
contribute  to  the  repairs,  can  have  no  action  for  repairs  against  him 
whose  land  the  well  is  in,  until  after  a  request  and  refusal  to  repair. 
Jackson,  J.,  who  delivered  the  unanimous  opinion  of  the  court,  said, 

*3  "We  are  not  aware  of  any  instance  in  which  the  writ  has  been  employed 
In  the  United  States  and  its  use  in  the  mother  country  was  rare."  Note  to 
Ward  V.  Ward  (1S95)  40  W.  Va.  611,  21  S.  E.  746,  29  L.  R.  A.  449,  in  52  Am.  St. 
Rep.  911,  934. 


Sec.  2)  INTENTION  TO   CLAIM  COMPENSATION  483 

that  considering  the  parties  as  tenants  in  common,  with  no  prescription, 
or  special  contract  as  to  repairs,  it  was  clear  the  action  could  not  be 
sustained,  without  a  request  by  the  plaintiff  to  the  defendant  to  join 
in  making  the  repairs.  He  says  the  action  on  the  case  seems  to  be  a 
substitute  for  the  old  writ  de  reparatione  f acienda.  But  he  adds :  "If 
two  co-tenants  tacitly  agree,  or  permit  the  house  or  its  appurtenances  to 
go  to  decay,  neither  can  complain  of  the  other,  until  after  a  request  and 
refusal  to  join  in  making  the  repairs,"  The  reason  upon  which  he 
founds  this  position,  seems  to  be  conclusive.  It  is,  that,  till  such  request 
and  refusal,  both  tenants  are  in  equal  fault,  one  having  as  much  reason 
to  complain  as  the  other. 

In  Loring  v.  Bacon,  4  Mass.  575,  it  appeared  that  the  plaintiff  owned 
the  upper,  and  the  defendant  the  lower  story  of  a  house.  The  plaintiff 
repaired  the  roof,  after  requesting  the  defendant  to  join  in  the  repairs ; 
and  then  sued  to  recover  the  defendant's  alleged  proportion.  The 
court  held  that  the  plaintiff  could  not  recover.  The  parties  were  con- 
sidered, not  as  tenants  in  common ;  but  owners  in  severalty  of  the  parts 
occupied  by  each.  But  the  principle  was  recognized,  that  tenants  in 
common  may  be  compelled  to  repair  by  the  writ  de  reparatione  facien- 
da ;  and  also  that  if  one  suffer  his  separate  property  to  go  to  decay  to 
the  injury  of  another,  a  writ  may  be  obtained  to  compel  him  to  repair 
it;  and  that  after  an  injury  sustained,  an  action  on  the  case  lies.  That 
case  was  very  different  from  this ;  and  no  inference  can  be  drawn  from 
it,  affecting  the  question  now  before  the  court. 

I  know  of  no  adjudication  or  principle  by  which  one  shall  be  com- 
pelled to  pay  another  for  services  rendered  without  request  or  assent, 
express  or  implied. 

The  plaintiff  in  error  is  not  liable  on  the  count  for  money  paid,  be- 
cause it  was  without  his  assent ;  nor  is  he  liable  as  co-tenant,  because  he 
was  not  in  fault,  having  never  been  requested  to  make  the  repairs. 
That  the  repairs  were  proper  and  necessary,  does  not  alter  the  case. 

The  judgment  must  be  reversed.    Judgment  reversed.** 

*i  Accord :  Ward  v.  Ward  (1S05)  40  W.  Va.  611,  21  S.  E.  746,  29  U  R.  A.  449, 
52  Am.  St.  Rep.  911  (with  excellent  note  collecting  the  authorities);  Cooper 
V.  Brown  (1909)  143  Iowa,  482,  122  N.  W.  144,  130  Am.  St.  Rep.  708. 

Contra:    Fowler  v.  Fowler  (1S82)  50  Conn.  256. 

In  Kentucky  relief  is  allowed  in  equity.  Alexander  v.  Ellison  (ISSO)  79  Ky. 
148. 

In  Calvert  v.  Aldrich  (1868)  99  Mass.  74,  96  Am,  Dec,  693,  and  Merchants' 
Bank  of  Florence  v,  Foster  (1899)  124  Ala,  696,  27  South.  513,  a  recovery  for 
necessary  repairs  was  denied,  even  though  that  had  been  a  prior  demand  and 
refusal. 

When  a  tenant  in  common  is  called  on  to  account  for  rents  and  profits,  or 
to  subn?it  to  a  partition  of  the  premises,  he  is  allowed  compensation  for  neces- 
sary repairs,  and  under  some  circumstances  for  improvements.  See  Ford  v. 
Knapp  a886)  102  N.  Y.  135,  6  N.  E.  283,  55  Am.  Rep.  782 ;   Ward  v.  Ward,  supra. 


484  BENEFITS   CONFERRED   UNDER  COMPULSION  (Ch.  5 

CHAPTER  V 
BENEFITS  CONFERRED  UNDER  COMPULSION 


SECTION  1.— DISCHARGE  OF  DEFENDANT'S  OBLIGATION 

I.  In  Generai« 


EXALL  V.  PARTRIDGE  et  al 
(Court  of  King's  Bench,  1799.     8  Term  R.  308.) 

This  was  an  action,  upon  promises  for  money  paid,  laid  out  and  ex- 
pended, for  the  use  of  the  defendants.  At  the  trial  before  Lord  Ken- 
yon,  at  the  sittings  after  last  term,  it  appeared  in  evidence,  that  the 
three  defendants  were  lessees  of  certain  premises  by  deed  from  one 
Welch,  to  whom  they  thereby  covenanted  to  pay  the  rent ;  and  that  two 
of  the  defendants  afterwards,  with  the  plaintiff's  knowledge,  assigned 
their  interest  to  Partridge,  the  other  co-lessee,  who  was  a  coach-maker ; 
subsequent  to  which  assignment,  the  plaintiff  put  his  carriage  upon  the 
premises,  under  the  care  of  Partridge,  where  it  was  taken  as  a  distress 
by  Welch,  the  landlord,  for  rent  in  arrear;  and  the  plaintiff,  in  order 
to  redeem  it,  was  obliged  to  pay  tlie  rent  due,  taking  at  the  time  a  re- 
ceipt from  Welch's  attorney,  as  for  so  much  received  on  account  of  the 
three  defendants.    The  present  action  was  brought  to  recover  that  sum. 

The  plaintiff  was  nonsuited  on  the  ground  that  the  action  should  have 
been  brought  against  Partridge  alone,  he  being  the  person  in  the  sole 
possession  of  the  premises  at  the  time,  with  the  knowledge  of  the  plain- 
tiff, who  had  trusted  him  only  with  the  possession  of  his  property ;  and 
he  also  being  the  person  ultimately  responsible  to  the  other  two  defend- 
ants; and,  therefore,  it  was  said  that  the  money  must  be  taken  to  have 
been  paid  for  his  use  only.    The  plaintiff  obtained  a  rule  nisi. 

Lord  Kenyon,  Ch.  J.  Some  propositions  have  been  stated,  on  the 
part  of  the  plaintiff,  to  which  I  cannot  assent.  It  has  been  said,  that 
where  one  person  is  benefited  by  the  payment  of  money  by  another, 
the  law  raises  an  assumpsit  against  the  former;  but  that  I  deny:  if 
that  were  so,  and  I  owed  a  sum  of  money  to  a  friend,  and  an  enemy 
chose  to  pay  that  debt,  the  latter  might  convert  himself  into  my  debtor, 
nolens  volens.  Another  proposition  was,  that  the  assignment  from  two 
of  the  defendants  to  the  third,  was  not  evidence  against  the  plaintiff', 
because  he  was  no  party  to  it ;  that  also  I  deny :  it  surely  was  evidence 
to  shew  in  what  relation  the  parties  stood  to  this  estate.  I  admit  that 
where  one  person  is  surety  for  another,  and  compellable  to  pay  the 


Sec.  1)  DISCHARGE   OF   DEFENDANT'S   OBLIGATION  485 

whole  debt,  and  he  is  called  upon  to  pay,  it  is  money  paid  to  the  use  of 
the  principal  debtor,  and  may  be  recovered  in  an  action  against  him  for 
money  paid,  even  though  the  surety  did  not  pay  tlie  debt  by  the  desire 
of  the  principal :  but  none  of  those  points  affect  the  present  question. 
As  the  plaintiff  put  his  goods  on  the  premises,  knowing  the  interests  of 
the  defendants,  and  thereby  placed  himself  in  a  situation  where  he  was 
liable  to  pay  this  money,  without  the  concurrence  of  two  of  the  defend- 
ants, I  thought  at  the  trial  that  it  was  money  paid  to  the  use  of  the  other 
defendant  only ;  but  on  that  point  I  have  since  doubted ;  and  I  rather 
think  that  the  opinion  I  gave  at  the  trial  was  not  well  founded. 

Grose,  J.  The  question  is,  whether  the  payment  made  by  the  plain- 
tiff, under  these  circumstances,  were  such  an  one  from  which  the  law 
will  imply  a  promise  by  the  three  defendants  to  repay?  I  think  it  was. 
All  the  three  defendants  were  originally  liable  to  the  landlord  for  the 
rent :  there  was  an  express  covenant  by  all,  from  which  neither  of  them 
was  released.  One  of  the  defendants  only  being  in  the  occupation  of 
these  premises,  the  plaintiff  put  his  goods  there,  which  the  landlord  dis- 
trained for  rent,  as  he  had  a  right  to  do ;  then  for  the  purpose  of  getting 
back  his  goods,  he  paid  the  rent  to  the  landlord,  which  all  the  three  de- 
fendants were  bound  to  pay.  The  plaintiff  could  not  have  relieved  him- 
self from  the  distress  without  paying  the  rent:  it  was  not  therefore  a 
voluntary,  but  a  compulsory  payment.  Under  these  circumstances,  the 
law  implies  a  promise  by  the  three  defendants  to  repay  the  plaintiff ; 
and,  on  this  short  ground,  I  am  of  opinion  that  the  action  may  be  main- 
tained. 

Lawrence;,  J.  One  of  the  propositions  stated  by  the  plaintiff's  coun- 
sel certainly  cannot  be  supported,  that  whoever  is  benefited  by  a  pay- 
ment made  by  another,  is  liable  to  an  action  of  assumpsit  by  that  other ; 
for  one .  person  cannot,  by  a  voluntary  payment,  raise  an  assumpsit 
against  another:  but  here  was  a  distress  for  rent,  due  from  the  three 
defendants ;  the  notice  of  distress  expressed  the  rent  to  be  due  from 
them  all ;  the  money  was  paid  by  the  plaintiff  in  satisfaction  of  a  de- 
mand on  all,  and  it  was  paid  by  compulsion ;  therefore  I  am  of  opinion 
that  this  action  may  be  maintained  against  the  three  defendants.  The 
justice  of  the  case  indeed  is  that  the  one  who  must  ultimately  pay  this 
money  should  alone  be  answerable  here :  but  as  all  the  three  defendants 
were  liable  to  the  landlord  for  the  rent  in  the  first  instance,  and  as  by 
this  payment  made  by  the  plaintiff,  all  the  three  were  released  from  the 
demand  of  the  rent,  I  think  that  this  action  may  be  supported  against 
all  of  them. 

Le  Blanc,  J.  Not  having  been  in  Court  when  this  motion  was  first 
made,  I  have  not  formed  on  the  sudden  a  decisive  opinion  upon  this 
case.  But,  at  present,  the  in(;lination  of  my  opinion  is,  that  this  action 
may  be  maintained  against  the  three  defendants,  on  this  ground : — The 
three  defendants  were  all  by  tlieir  covenant  bound  to  see  that  the  rent 
was  paid;  by  their  default  in  not  seeing  that  it  was  paid,  the  plaintiff's 
goods  were  distrained  for  a  debt,  due  from  the  three  defendants  to 


486  BENEFITS   CONFERRED   UNDER   COMPULSION  (Cll.  5 

Welch;  hy  compulsion  of  law  he  was  obliged  to  pay  that  debt;  and, 
therefore,  I  think  he  has  his  remedy  against  the  three  persons  who  by 
law  were  bound  to  pay,  and  who  did  not  pay  this  money. 
Rule  absolute.^ 


HOGG  V.  LONGSTRETH. 

(Supreme  Court  of  Pennsylvania,  1881.    97  Pa.  255.) 

Error  to  the  Court  of  Common  Pleas,  No.  3,  of  Philadelphia  County. 

This  was  an  action  of  assumpsit  by  William  Hogg,  Jr.,  against  John 
Longstreth,  to  recover  the  amount  of  certain  taxes  paid  by  the  plaintiff 
on  premises  of  which  the  plaintiff  was  mortgagee  and  the  defendant 
was  terre-tenant.  The  court  directed  a  verdict  for  the  defendant,  upon 
which  judgment  was  entered. 

Trunkey,  J.^  Henry  Myers  gave  to  the  plaintiff  three  mortgages, 
dated  May  31,  1872,  each  being  on  a  separate  lot  in  Philadelphia.  Sub- 
sequently Myers  conveyed  the  lots  to  Kaign,  Kaign  conveyed  to  Taylor, 
and  Taylor,  by  deed  dated  February  6,  1874,  conveyed  to  Longstreth, 
the  defendant;  each  conveyance  being  subject  to  said  mortgages.  In 
1879,  a  scire  facias  was  issued  on  each  mortgage,  against  Myers  with 
notice  to  Longstreth,  as  terre-tenant,  and  the  judgments  thereon  aggre- 
gated nearly  $6,000.  Hogg,  the  mortgagee,  purchased  the  lots  at  sher- 
iff's sale  on  his  judgments.  During  the  five  years  that  Longstreth  own- 
ed the  lots,  he  neglected  to  pay  the  taxes.  Judgment  had  been  obtained 
for  the  taxes  of  the  first  three  years.  After  his  purchase  at  sheriff's 
sale,  the  mortgagee  paid  that  judgment,  and  also  the  taxes  for  the  re- 
maining two  years,  the  proceeds  of  sale  having  been  insufficient  to  cover 
them,  and  he  claims  to  recover  the  amount  of  said  judgment  and  taxes 
in  this  suit. 

There  is  no  evidence  that  the  defendant  agreed  to  pay  the  mortgage- 
debt.  Hence  he  was  not  personally  liable  therefor,  and  was  under  no 
obligation  to  the  plaintiff  arising  out  of  a  contract.  As  against  all  the 
world,  except  the  mortgagee,  he  held  the  lots  by  absolute  title,  and  he 
could  divest  the  mortgagee's  estate  by  paying  the  debt.  The  mortgagee 
was  liable  to  be  taxed  for  money  at  interest  secured  by  the  mortgages ; 

1  In  Edmunds  v.  Wallingford  (1885)  L.  R.  14  Q.  B.  D,  811,  certain  goods,  be- 
longing to  plaintiff's  assignors  and  in  defendant's  possession,  were  seized  and 
80ld  in  satisfaction  of  defendant's  debt.  Held,  plaintiff  could  recover  the  value 
of  such  goods  in  an  action  of  money  had  and  received.  This  decision  discred- 
its England  v.  Marsden  (ISCiG)  L.  R.  C.  P.  529,  which  had  limited  somewhat 
the  doctrine  of  Exall  v.  Partridge,  supra. 

In  Wells  V.  Porter  (1831)  7  Wend.  (N.  Y.)  119,  plaintiff  bailed  certain  hogs, 
for  the  purpose  of  being  fatted,  with  one  of  the  defendants,  who  were  lessees 
of  land.  The  hogs  were  seized  and  sold  on  a  distress  for  rent  of  the  premises, 
and  plaintiff  bought  them  in  at  the  sale.  Held,  plaintiff  could  recover  from 
defendants  the  money  thus  paid. 

See,  also,  In  re  Button,  [1907]  2  K.  B.  180. 

2  The  statement  of  facts  is  abridged. 


Sec.  1)  DISCHARGE   OF   DEFENDANT'S   OBLIGATION  487 

the  defendant,  holding  title  under  the  mortgagor,  was  liable  for  the 
taxes  on  the  land. 

Being  in  possession,  he  was  not  only  legally  liable,  but  had  no  equity 
for  the  attempt  to  impose  payment  of  the  taxes  on  another  person.  By 
force  of  law  the  taxes  were  a  personal  charge  against  the  defendant, 
as  well  as  a  lien  on  the  real  estate.  This  lien  was  not  only  entitled  to 
preference  over  other  liens,  but  would  not  be  discharged  by  a  judicial 
sale  on  any  other  lien,  unless  the  proceeds  were  sufficient  to  pay  it. 
Therefore,  the  plaintiff  had  no  alternative  but  to  pay  the  taxes  owing 
by  the  defendant,  or  lose  the  land.  Had  the  taxes  been  prosecuted  to 
collection  before  the  foreclosure  of  the  mortgage,  the  plaintiff  must 
have  paid  them,  or  have  lost  his  security.  A  mortgagee  in  possession, 
holding  a  living  pledge,  may  pay  taxes  on  the  land,  and  treat  the  sum  so 
paid  as  part  of  his  debt,  which  he  is  entitled  to  receive  out  of  the 
profits.  When  the  mortgagor  is  in  possession,  and  neglects  to  pay  taxes 
which  are  a  lien  on  the  land,  the  mortgagee  may  pay  them  not  only  in 
reliance  on  the  personal  liability  of  the  owner,  but  in  reliance  that  the 
land  is  liable,  and  the  lien  will  be  deemed  as  transferred  by  the  State 
to  him  in  favor  of  the  mortgage-debt.  Kortright  v.  Cady,  23  Barb.  (N. 
Y.)  490.  Where  a  mortgagee  is  under  the  necessity  of  satisfying  an 
execution  on  a  prior  judgment,  to  preserve  his  security,  he  is  held  by 
right  of  substitution  to  stand  in  the  place  of  the  judgment  creditor,  and 
on  sale  of  the  land  is  entitled  to  receive  the  amount  of  the  judgment 
out  of  the  fund  as  well  as  the  mortgage  debt.  The  payment  of  the 
judgment  is  an  act  which  the  mortgagee  was  compelled  to  do  for  his 
own  safety.  Silver  Lake  Bank  v.  North,  4  Johns.  Ch.  (N.  Y.)  370. 
The  principle  of  subrogation  in  such  case,  for  purposes  of  lien  and 
distribution,  is  familiar,  and  it  often  applies  where  there  can  be  no  re- 
covery in  a  personal  action. 

It  is  a  clearly  established  principle,  that  no  assumpsit  will  be  raised 
by  the  mere  voluntary  payment  of  the  debt  of  another  person ;  from 
such  act  a  request  and  promise  are  not  implied.  Another  principle  is, 
that  when  the  plaintiff  is  compelled  to  pay  the  defendant's  debt,  in  con- 
sequence of  his  omission  so  to  do,  the  law  infers  that  he  requested  the 
plaintiff  to  make  the  payment  for  him.  As  when  the  plaintiff'  at  the  re- 
quest of  the  defendant  left  a  carriage  on  the  defendant's  premises,  and 
the  carriage  was  distrained  for  rent,  it  was  held  that  the  plaintiff,  hav- 
ing paid  the  rent,  could  recover  it.  In  such  case  and  the  like,  it  is  not 
permitted  to  the  defendant  to  defend  on  the  ground  that  the  payment 
was  voluntary.  In  some  cases  when  a  plaintiff  has  voluntarily  per- 
formed a  duty  which  the  defendant  was  under  a  strict  legal  liability 
to  perform,  he  may  recover  the  money  expended,  although  there  has 
been  no  express  conseht  or  request  by  the  defendant  to  the  plaintiff's 
act.  As  when  a  man,  in  the  absence  of  the  husband,  incurs  expense  in 
burying  the  deceased  wife  in  a  manner  suitable  to  the  husband's  condi- 
tion. 


488  BENEFITS  CONFERRED   UNDER   COMPULSION  (Ch.  5 

There  was  a  strict  legal  liability  on  the  defendant  to  pay  tlie  taxes. 
And  it  was  his  duty.  Prompt  payment  of  taxes  is  to  the  public  ad- 
vantage. Attempts  by  him  who  owes  and  ought  to  pay  them  to  evade 
payment,  or  shift  the  burden  upon  another,  ought  not  to  be  encouraged. 
The  defendant  has  shown  nothing  which  in  good  conscience  should  re- 
lieve him.  He  wittingly  became  owner  and  held  possession  of  the  lots 
subject  to  the  mortgages,  and  had  as  little  right  to  create  or  suffer  an 
encumbrance  which  would  take  preference  of  the  mortgage  as  the 
mortgagor  would  have  had,  had  he  remained  owner  and  in  possession. 
The  mortgagee  was  compelled  to  pay  the  taxes  in  relief  of  the  land  pur- 
chased for  his  debt,  the  land  not  raising  a  fund  sufficient  to  pay  both 
liens.  We  are  of  opinion  this  is  a  clear  case  for  application  of  the 
principle,  that  he  who  is  compelled  to  pay  another's  debt,  because  of 
his  omission  to  do  so,  may  recover  on  the  ground  that  the  law  infers  that 
the  debtor  requested  such  payment. 

The  plaintiff's  first  point  should  have  been  affirmed.  Judgment  re- 
versed, and  a  venire  facias  de  novo  awarded.' 

8  The  principal  case  represents  the  prevailing  doctrine.  Phinney  v.  Foster 
(1905)  1S9  Mass.  182,  75  N.  E.  103 ;  Iron  City  Tool  Works  v.  Long  (Pa.  1S86) 
7  Atl.  82  (immaterial  that  legal  proceedings  to  collect  the  tax  have  not  yet 
been  commenced ;  not  necessary  that  plaintiffs  wait  until  process  was  issued 
against  them  or  their  property) ;  Childress  v.  Vance  (1872)  60  Tenn.  (1  Baxt.) 
406. 

Contra :  William  Ede  Co.  v.  Hey  wood  (1908)  153  Cal.  615,  96  Pac.  81,  22  L. 
R.  A.  (N.  S.)  562  (strong  dissenting  opinion). 

For  a  few  of  the  many  further  applications  of  the  doctrine  see: 

Dawson  v.  Linton  (1822)  5  B.  &  Aid.  521.  (By  statute  a  drainage  tax  was 
payable  by  certain  tenants  who  might  deduct  and  retain  the  same  out  of  their 
rents  due  to  their  landlords.  Held  that  an  outgoing  tenant,  who  had  paid  his 
rent  in  full,  but  whose  goods  left  on  the  premises  had  been  distrained  for  such 
tax  and  who  was  obliged  to  pay  it,  might  recover  the  amount  thereof  from  his 
landlord.) 

Hales  V.  Freeman  (1819)  1  Brod.  &  B.  391.  (By  statute  a  legacy  duty  was 
chargeable  upon  the  executor,  who  on  making  payment  might  deduct  the  same 
from  the  amount  due  the  legatee,  and  was  also  chargeable  upon  the  legatee 
when  he  shall  have  received  his  legacy  without  such  duty  having  been  paid. 
The  amount  of  the  legacy  was  paid  in  full  to  the  legatee  and  thereafter  the 
executor  paid  the  duty  and  sued  the  legatee.  Held  for  plaintiff;  Dallas,  C. 
J.,  saying:  "This  does  not  resemble  the  case  of  a  voluntary  payment,  or  a 
payment  made  in  ignorance  of  fact  or  law.  So  far  from  being  a  voluntary 
payment,  it  is  clearly  compulsory  on  the  clause  of  the  statute  holding  both 
executor  and  legatee  liable  at  any  time.  Both  parties,  therefore,  being  liable 
in  this  case,  the  payment  made  by  the  plaintiff  was  in  substance  a  payment 
for  the  legatee,  and  the  plaintiff  is  entitled  to  recover.") 

Sargent  v.  Currier  (1870)  49  N.  H.  310,  6  Am.  Rep.  524.  (Purchaser  of  chat- 
tel recovers  from  seller  the  amount  of  mortgage  paid  off  by  purchaser,  both 
parties  being  ignorant  of  the  existence  of  the  mortgage  at  the  time  of  the  sale.) 

Goodridge  v.  Lord  (1813)  10  Mass.  483.  (Owner  of  vessel  paid  wages  due 
from  defendant,  a  master  employed  by  the  charterer  of  the  vessel,  to  release 
the  vessel  from  a  libel  for  such  wages.) 

Treat  &  Young  v,  Craig  (1901)  135  Cal.  91,  67  Pac.  7.  (Purchaser  of  land 
subject  to  mortgage,  required  by  judgment  On  foreclosure  to  pay  deticiencY 
judgment,  upon  paying  same  recovers  amount  from  mortgagor.) 

Irvine  v.  Angus  (1899)  93  Fed.  629,  35  C.  C.  A.  501.  (Bona  fide  claimant  of 
stock,  who,  pending  litigation  as  to  ownership,  paid  assessment  to  prevent 


Sec.  1)  DISCHARGE  OF  DEFENDANT'S  OBLIGATION  489 

INHABITANTS  OF  TOWN  OF  BERLIN  v.  SCHOOL  SOCIETY 
OF  NEW  BRITAIN. 

(Supreme  Court  of  Errors  of  Connecticut,  1832.    9  Conn.  175.) 

This  was  a  bill  in  chancery,  to  which  the  defendants  gave  a  general 
demurrer;  in  which  the  plaintiffs  joined ;  and  thereupon  the  case  was  re- 
served for  the  consideration  and  advice  of  this  Court. 

HosMER,  C.  J.*  Two  general  questions  arise  in  this  case,  to  wit, 
whether  there  is  adequate  remedy  for  the  plaintiffs  at  law ;  and  if  not, 
whether  they  are  entitled  to  the  redress  sought  in  chancery. 

1.  The  facts  averred  in  the  plaintiffs'  bill,  if  there  be  any  remedy, 
unquestionably  show,  that  there  is  adequate  redress  at  law.  The  plain- 
tiffs, by  the  general  law  of  the  state,  (Stat.  1821,  p.  266,)  are  obliged  to 
make,  build,  and  keep  in  sufficient  repair,  all  the  necessary  highways 
within  the  limits  of  their  town.     From  tliis,  to  a  certain  extent,  they 

sale  of  the  stock,  allowed  to  recover  same  from  the  one  finally  adjudged  to 
be  the  owner  of  the  stock.) 

Hoadley  v.  Dumois  (1895)  11  Misc.  Rep.  52,  31  N.  Y.  Supp.  853.  (Consignee 
paying  money  due  owners  of  the  ship  from  the  charterer  on  account  of  hire 
of  the  ship,  for  which  the  owners  have  a  lien  on  the  cargo,  may  recover  same 
from  the  charterer.) 

Poe  V.  Dixon  (1899)  60  Ohio  St.  124,  54  N.  E.  86,  71  Am.  St.  Rep.  713.  (Gran- 
tor of  land,  who  is  personally  liable  upon  a  mortgage  on  such  land  and  who 
is  required  to  pay  a  deficiency  judgment,  may  recover  from  grantee,  who  had 
assumed  such  mortgage.) 

But  see  Manning  v.  Poling  (1901)  114  Iowa,  20,  83  N.  W.  895,  86  N.  W.  30. 

To  entitle  plaintiff  to  maintain  his  action  it  is  not  essential  that  he  should 
have  paid  money.  It  is  sufiicient  if  there  has  been  a  payment  made  by  him 
in  satisfaction  of  the  defendant's  liability,  either  by  way  of  a  conveyance 
of  land  (Ainslie  v.  Wilson  [1827]  7  Cow.  [N.  Y.]  6SS,  17  Am.  Dec.  532;  Lord 
V.  Staples  [1851]  23  N.  H.  451,  457),  or  by  way  of  a  set-off  in  reduction  of  his 
own  claim  against  the  creditor  (Ticonic  Bank  v.  Smiley  [1847]  27  Me.  225,  46 
Am.  Dec.  593). 

In  Volker  v.  Fisk  (1909)  75  N.  J.  Eq.  497,  72  Atl.  1011,  plaintiff  employed  de- 
fendant to  sell  certain  land.  Defendant  sold  the  land  for  $6,000  to  one  For- 
narotto,  who  at  plaintiff's  request  paid  defendant  $300  out  of  the  purchase 
price  as  commission  for  selling  the  land.  Fornarotto  subsequently  repudiated 
the  sale  on  the  ground  of  his  infancy  and  obtained  a  decree  for  rescission 
against  the  plaintiff,  pursuant  to  which  decree  plaintiff  paid  him  .$6,000. 
Plaintiff  now  brings  a  bill  in  equity  against  the  defendant  for  the  return  of 
such  commission,  plaintiff  relying  upon  the  theory  of  subrogation.  Held  for 
defendant,  the  court  saying:  "It  is  clear  to  me  that  the  complainant  has  a  per- 
fect cause  for  action  In  a  court  of  law  against  Mrs.  Fisk  to  recover  the  money 
In  the  equitable  action  of  assumpsit  for  money  paid,  upon  an  implied  contract. 
Mr.  Chitty  says  the  count  for  money  paid  is  supported  if  the  payment  were 
made  at  the  express  or  implied  request  of  the  defendant,  and  that  it  is  clear 
that  if  money  be  paid  by  a  person  in  consequence  of  a  legal  liability  to  which 
he  is  subject,  but  from  which  a  third  person  ought  to  have  relieved  him  by 
paying  the  amount,  a  request  will  be  implied.  1  Ch.  PI.  351.  Surely  the  com- 
plainant wap.  under  a  legal  liability  to  pay  Fornarotto  the  $300,  and  that  lia- 
bility was  cast  upon  him  by  the  decree  of  this  court.  Just  as  surely  Mrs.  Fisk 
ought  to  have  relieved  him  from  the  burden  by  paying  the  amount  herself. 
Ergo,  the  law  implies  that  the  complainant  has  made  tlie  payment  at  the  re- 
quest of  Mrs.  Fisk,  and  therefore  he  can  recover  the  amount  from  her  in  as- 
sumpsit" 

*  The  statement  of  facts  and  a  portion  of  the  opinion  are  omitted. 


490  BENEFITS   CONFERRED   UNDER   COMPULSION  (Ch.  5 

aver,  that  they  were  exonerated,  by  the  defendants,  who,  on  a  considera- 
tion, received  by  them,  expressly  assumed  to  build  the  necessary  high- 
ways, within  the  society  of  New-Britain.  On  application  to  them,  for 
this  purpose,  the  defendants  refused  to  discharge  this  legal  obligation, 
by  reason  of  which  the  plaintiffs,  as  they  were  bound  to  do,  by  the  law, 
built  certain  highways,  and  paid  and  expended  large  sums  of  money  for 
this  purpose.  These  sums  they  now  seek  to  recover,  by  their  bill.  In 
these  allegations  are  comprised  all  the  elements  of  the  action  of  as- 
sumpsit for  money  paid,  laid  out  and  expended. 

The  only  seeming  objection  arises  from  the  necessity  of  sustaining 
the  averment,  that  the  money  was  advanced  at  the  special  instance  and 
request  of  the  defendants.  But  this  request  the  law  implies,  from  the 
facts  stated  in  the  case.  The  defendant's  assent  is  always  implied, 
where  the  plaintiff  is  under  a  legal  obligation  to  pay  money,  through 
his  default.  Such  are  the  cases  of  sureties,  who  satisfy  a  debt ;  of  a 
person,  who  pays  money  on  a  bond  or  judgment,  for  the  use  of  a  joint 
obligor ;  of  one  who,  in  consequence  of  the  defendant's  default,  has  been 
compelled  to  pay  money  to  relieve  his  goods  from  distress ;  and  gener- 
ally, where  from  the  beneficial  nature  of  the  consideration  and  circum- 
stances of  the  case,  a  request  may  be  implied.  1  Fonbl.  Eq.  336,  n. ; 
Yelv.  41,  n.  (Metcalf's  Ed.) :  Jenkins  v.  Tucker,  1  H.  Bla.  93;  Oatfield 
v.  Waring,  14  Johns.  (N.  Y.)  188;  2  Stark.  Ev.  100,  1,  2. 

If  there  was  a  discovery  required  in  the  case,  or  the  nature  of  the 
relief  was  specific,  the  plaintiffs'  bill  might  be  sustained ;  but  neither  of 
these  exist.  An  account  from  the  defendants  is  not  requisite,  being  a 
matter  of  defence  only ;  and  the  recovery  sought  is  for  a  sum  of  money, 
to  be  collected,  in  the  usual  manner,  by  execution.  Coe  v.  Turner,  5 
Conn.  86 ;  Kempshall  v.  Stone,  5  Johns.  Ch.  (N.  Y.)  193. 

2.  If,  however,  the  remedy  were  in  chancery,  the  plaintiffs  must 
fail.     *     *     *      • 

For  the  reasons  assigned,  the  superior  court  must  be  advised,  that  the 
plaintiffs'  bill  be  adjudged  insufficient.  See  Sterling  v.  Peet,  14  Conn. 
249. 

Demurrer  to  be  sustained  and  bill  dismissed.', 

5  In  Spencer  v.  Tarry  (1S35)  3  A.  &  E.  331,  a  tenant  as  a  part  of  his  rent 
agreed  to  pay  the  taxes  on  the  property  which  by  statute  were  due  from  the 
landlord.  The  tenant  having  made  default,  the  landlord  paid  the  ta.xes  and 
sued  for  money  paid  to  defendant's  use.  Held,  that  plaintiff  had  misconceived 
his  remedy,  since  his  payment  "relieved  the  defendant  from  no  liability  but 
what  arose  from  the  contract  between  them." 


Sec.  1)  DISCHARGE   OF   DEFENDANT'S  OBLIGATION  491 

BROWN  V.  HODGSON. 
(Court  of  Common  Pleas,  1811.     4  Taunt.  189.) 

Payne  sent  butter  to  London  consigned  to  Pen,  by  the  hands  of  the 
plaintiff,  a  carrier,  who,  by  mistake  delivered  it  to  the  defendant,  and 
he  appropriated  it  to  his  own  use,  selling  it  and  receiving  the  money. 
Pen  had  paid  Payne  for  the  butter,  and  Brown,  admitting  the  mistake 
he  had  made,  paid  Pen  the  value.  The  plaintiff  declared  for  goods  sold 
and  delivered,  and  for  money  paid;  and  delivered  to  the  defendant  a 
bill  of  particulars,  "To  17  firkins  of  butter,  £55  6s."  not  saying  for 
goods  sold.  It  was  objected  for  the  defendant;  that  there  was  no  con- 
tract oi  sale,  either  express  or  arising  by  implication  of  law  between 
the  parties,  upon  this  transaction,  and  that  although  the  plaintiff  might 
have  recovered  in  trover,  he  could  not  bring  assumpsit  for  goods  sold ; 
the  count  for  money  paid  was  not  adverted  to  at  the  trial.  The  jury 
found  a  verdict  for  the  plaintiff. 

Vaughan,  Sergt.,  in  this  term,  obtained  a  rule  nisi  to  set  aside  the 
verdict ;  and 

Shepherd,  Sergt.,  now  showed  cause  against  it,  contending  that  in- 
asmuch as  Pen  might  have  recovered  the  value  of  the  butter  against 
the  defendant,  it  was  competent  to  the  plaintiff',  who  had  paid  to  Pen 
the  value  of  the  butter,  to  sue  the  defendant  for  the  price,  as  money 
paid  for  his  use. 

Vaughan,  contra,  contended  that  the  plaintiff  was  precluded  from 
taking  that  ground,  because  he  had  made  no  claim  for  money  paid  in 
his  bill  of  particulars,  but  only  for  goods  sold. 

Mansfield,  C.  J.  At  the  trial  my  attention  was  not  called  to  the 
count  for  money  paid,  but  upon  this  count  I  think  the  action  may  be 
sustained.  The  plaintiffs  pay  Pen  on  account  of  these  goods  being 
wrongfully  detained  by  Hodgson ;  they  pay  the  value  to  the  person  to 
whom  both  they  and  Pen  were  bound  to  pay  it ;  and  this,  therefore,  is 
not  the  case  of  a  man  officiously  and  without  reason  paying  money  for 
another;  and,  therefore,  the  action  may  be  supported.  As  to  the 
objection  taken  respecting  the  bill  of  particulars,  bills  of  particulars  are 
not  to  be  construed  with  all  the  strictness  of  declarations;  this  bill  of 
particulars  has  no  reference  to  any  counts,  and  it  sufficiently  expresses 
to  the  defendant,  that  the  plaintiff's  claim  arises  on  account  of  the 
butter. 

Heath,  J.  We  must  not  drive  parties  to  special  pleaders  to  draw 
their  bills  of  particulars. 

Rule  discharged.® 

«  In  Van  Santen  v.  Standard  Oil  Company  (ISSO)  81  N.  T.  171,  the  plaintiff's 
complaint  alleged  in  substance  that  the  defendant,  at  the  request  of  one 
Sohns,  loaded  a  vessel  with  petroleum,  and  by  representations  that  it  had 
put  on  board  110  barrels  more  than  it  had  in  fact  the  defendant  induced  the 
master  of  the  vessel  to  give  to  Sohns  a  bill  of  lading  for  that  amount  in  ex- 
cess of  the  actual  amount  loaded,  and  Sohns  paid  the  defendant  therefor; 
that  Sohns  assigned  the  bill  of  lading,  and  the  assignees  on  arrival  com- 


492  BENEFITS  CONFERRED   UNDER  COMPULSION  (Ch.  5 

NIMICK  V.  HOLMES. 
(Supreme  Court  of  Pennsylvania,  1855.     25  Pa.  366,  64  Am.  Dec.  710.) 

Error  to  the  District  Court  of  Allegheny  County. 

This  was  an  action  of  assumpsit  brought  by  William  Holmes  &  Co. 
against  Charles  A.  Israel  and  others,  owners  of  the  steamboat  ''Sus- 
quehanna," for  the  loss  of  ninety-six  hogsheads  of  sugar,  shipped  by 
Holmes  &  Co.,  upon  the  said  steamboat,  from  Cincinnati  to  Pittsburgh, 
upon  a  bill  of  lading,  excepting  the  unavoidable  dangers  of  the  river 
and  fire. 

While  the  boat  was  lying  at  the  wharf  in  Cincinnati,  on  the  4th  May, 
1852,  taking  in  a  cargo  for  Pittsburgh,  which  consisted  principally  of 
sugar,  cotton,  bacon  and  oil,  she  was  discovered  to  be  on  fire  in  the 
hold.  The  cause  of  the  fire  was  unknown.  The  hatches  were  closed 
down,  and  preparations  made  for  getting  up  steam  and  injecting  it  into 
the  hold,  by  means  of  apparatus  provided  for  that  purpose,  and  also 
water  was  introduced  by  means  of  hose.  In  about  an  hour  after  the 
discovery  of  the  fire,  the  steampipes  were  brought  into  play,  and  turned 
into  the  interior  of  the  boat,  where  they  continued  to  operate  for  four- 
teen hours  or  more.  The  fire,  however,  still  making  progress,  and  the 
officers  of  the  boat  believing  there  was  no  other  possible  means  of 
saving  the  boat  and  cargo,  determined,  after  consultation  among  them- 
selves, and  with  various  other  persons,  upon  the  expedient  of  scuttling 
her.  They  accordingly  ran  the  boat  out  into  the  river,  about  two  miles 
from  the  wharf,  and  there  sunk  her  on  a  bar.  A  portion  of  the  deck 
was  torn  up,  and  water  introduced  from  above,  and  by  these  means  tlie 
fire  was  subdued  and  extinguished.  In  a  few  hours  afterwards,  the 
boat  was  raised  and  taken  back,  with  the  remnant  of  the  cargo,  to  Cin- 
cinnati, where  the  cargo  was  sold.  The  cargo  was  injured  to  about 
seventy-five  per  cent,  of  its  value,  and  the  boat  and  cargo,  together,  to 
the  value  of  about  twenty-five  per  cent,  of  their  entire  value. 

The  declaration  contained  four  counts.  The  first  count  was  on  the 
bill  of  lading  against  the  defendants  as  common  carriers ;  the  second, 
a  special  count  for  contribution  on  a  general  average ;  the  third,  a  gen- 
eral count  for  general  average;  and  the  fourth,  for  money  had  and 
received. 

pelled  the  master  to  pay  for  the  deficiency.  Plaintiff  claimed  as  assignee  of 
the  master  to  recover  the  amount  so  paid.  Held,  that  a  demurrer  to  the 
complaint  was  properly  overruled;  the  court  saying:  "It  was  the  duty  of  the 
defendant  to  place  on  board  the  vessel  the  full  number  of  barrels  for  which 
it  received  pay ;  it  represented  to  the  master  of  the  vessel  that  it  had  done 
so.  In  consequence  of  this  representation  he  undertook  to  deliver  that  num- 
ber to  the  consignee,  who  paid  therefor  upon  faith  in  the  bill  of  lading.  The 
neglect  of  duty  by  the  defendant  imposed  upon  the  master  the  obligation  to 
make  good  the  deficiency  caused  by  this  neglect,  not  voluntarily,  but  in  per- 
formance of  a  legal  duty,  enjoined  by  the  conditions  of  the  bill  of  lading. 
Those  conditions  resulted  from  the  act  of  the  defendant  and  are  equivalent 
to  an  express  request  by  the  defendant  to  make  such  payment." 
See,  also,  Bailey  v.  Bishop  (1910)  152  N.  C.  383.  67  S.  E.  968. 


Sec.  1)  DISCHARGE   OF   DEFENDANT'S  OBLIGATION  493 

The  plaintiffs,  on  the  trial,  gave  in  evidence  the  bill  of  lading,  and 
proved  the  value  and  non-delivery  of  the  sugar,  and  rested.  The  de- 
fendants then  introduced  the  proof  of  the  special  facts  and  circum- 
stances above  stated.  The  evidence  given  in  the  case  shovi^ed  that 
both  boat  and  cargo  were  in  imminent  peril,  and  that  the  introduction 
of  steam  and  water  into  the  hold,  the  scuttling  of  the  boat,  and  the 
tearing  up  of  the  deck  were  resorted  to,  for  the  purpose  of  preventing 
the  entire  destruction  of  the  boat  and  cargo,  and  were  necessary  to 
accomplish  that  end. 

The  general  instructions  of  the  Court  below  (Hampton,  P.  J.)  were 
summed  up  as  follows : 

"If,  then,  you  believe  from  the  evidence  there  was  a  common  danger 
both  to  the  boat  and  cargo,  which  was  imminent  and  apparently  in- 
evitable, except  by  voluntarily  causing  the  loss  and  injury  that  were 
done  to  the  vessel  and  a  portion  of  the  cargo  in  order  to  save  the  re- 
mainder, and  that  by  these  means  so  employed,  the  vessel  and  a  por- 
tion of  the  cargo  were  saved,  then  the  plaintiffs  will  be  entitled  to  your 
verdict  on  the  footing  of  a  general  average." 

The  jury  found  for  the  plaintiffs  $5,076.61— $4,073.40,  part  tliereof, 
on  the  second  count  for  general  average,  and  $1,003.21,  the  residue 
thereof,  on  the  last  count  for  money  had  and  received — and  for  the  de- 
fendants on  the  other  counts. 

LowRiE,  ].''  Though  the  Rhodian  law  de  jactu  provided  for  con- 
tribution only  in  the  case  of  goods  cast  overboard  in  times  of  peril,  yet 
the  spirit  of  the  regulation  is  in  its  reason,  which  is,  because  the  act 
was  done  for  the  benefit  of  all ;  and  it  was  this  reason,  rather  than  the 
limited  expression  of  it,  that  was  applied  in  the  Roman  jurisprudence. 
Dig.  14,  2.  And  if  the  adoption  of  the  Rliodian  law  by  Augustus  and 
Antonine  is  the  only  evidence  that  the  Romans  derived  their  law  of 
marine  contribution  from  the  Rhodians,  then  it  is  fully  met  by  the  text 
(Dig.  14,  2,  2,  3),  which  refers,  for  the  same  principle  to  the  Roman 
lawyers,  Servius,  Labea,  and  Ofilius,  who  flourished  in  the  time  of 
Julius  Caesar ;  and  the  absence  of  all  reference  to  the  Rhodian  law,  in 
the  cases  mentioned  in  the  Digest,  seems  to  show  that  the  regulation 
was  part  rather  of  their  common  than  of  their  statute  law.  And,  while 
it  may  be  doubted,  perhaps,  whether  our  law  of  average  was  in  fact 
derived  from  the  Romans,  it  is  very  plain  that  the  Roman  law  on  this 
subject  has  had  great  influence  in  moulding  and  defining  that  of  all 
modern  commercial  nations.  The  equity  of  the  rule  is  so  obvious  to 
natural  reason,  that  it  may  very  well  be  supposed  that  the  practice 
might  grow  up  spontaneously,  wherever  naval  commerce  existed.  The 
name  average,  given  to  it  in  nearly  all  European  languages,  would  seem 
to  strengthen  this  supposition,  for  this  is  not  at  all  of  Roman  origin ; 
and  a  modern  latin  word,  "avaria,"  had  to  be  invented  to  express  it,  as 
the  word  "contributio"  did  not  express  the  same  idea.    Average  means 

»  The  statement  of  facts  has  been  abridged. 


494  BENEFITS   CONFERRED   UNDER  COMPULSION  (Ch.  5 

ship  damage,  and  not  contribution,  as  is  plain  when  we  speak  of  par- 
ticular average.  The  average  of  common  parlance  is  a  secondary  sense 
of  the  word,  derived  from  the  practice  of  contribution  in  cases  of  gen- 
eral average. 

But  whencesoever  the  practice  may  have  been  derived  into  the  law 
of  modern  nations  it  may  be  said  that,  for  America,  England,  and  con- 
tinental Europe,  there  is  but  one  law  on  this  subject;  and  its  unity  is 
preserved  by  the  simplicity  of  the  principle  embodied  in  it,  and  by  the 
fact  that  all  treatises,  European  and  American,  on  this  subject,  like 
those  on  international  law,  are  regarded  as  the  common  property  of  the 
commercial  world. 

In  the  Ordinatio  Nautica  of  the  Hanseatic  Cities,  title  8,  which  was 
compiled  in  1614  from  more  ancient  customs  and  ordinances,  there  is 
a  law  on  this  subject,  which  is  scarcely  more  comprehensive  than  the 
Rhodian  law  de  jactu;  but  ReinoW  Kuricke,  in  his  commentary  upon 
it,  shows  that  its  practical  interpretation  has  been  as  large  as  the  reason 
upon  which  it  is  founded,  and  he  quotes  from  Weitsius  the  rule,  that 
every  loss,  suffered  by  ship  or  cargo  for  the  purpose  of  averting  a 
common  danger,  is  a  subject  of  general  average. 

Locconius  (De  Jure  Maritimo,  2,  8,  7)  says  that  equity  and  expedi- 
ency require  this  extensive  interpretation,  and  that  it  is  easy  to  apply 
the  rule  according  to  its  reason  to  all  cases  of  sacrifice  for  the  common 
safety  as  they  arise. 

The  rule  is  laid  down  in  all  its  breadth  by  the  commentators  on  the 
Digest,  14,  2.  Pothier  merely  repeats  what  he  finds  there;  but  Voet 
generalizes  the  cases,  and  declares  that  no  matter  where  the  act  is  done, 
or  under  what  circurristances  of  danger,  if  there  be  a  sacrifice  of  part 
for  the  safety  of  the  rest,  and  without  any  fault  of  the  master,  it  is  a 
case  of  general  average.  Noodt  says  that,  whatsoever  may  be  the 
nature  of  the  sacrifice,  it  is  at  the  common  expense,  if  it  is  for  the  com- 
mon safety.  In  pari  causa,  par  jus  servature,  etiam  cum  verba  legis 
deficiunt.    Huber  says  the  same. 

Mittermaier  (Grundsatze  des  Deutschen  Privatrechts,  §  317)  says,  to 
general  average  belongs  every  intentional  sacrifice  made  for  the  pur- 
pose of  averting  or  mitigating  a  danger  that  is  common  to  both  ship 
and  cargo ;  and  he  cites  very  freely  the  English  and  American  works 
on  this  subject,  that  are  familiar  to  us  all. 

Vincens  (3  Legislation  Commerciale,  186)  declares  that  all  the  dam- 
ages deliberately  suffered  for  the  common  safety,  and  all  the  time  ex- 
pended in  repairing  them,  must  be  taken  as  general  average.  To  this 
rule  there  are  no  exceptions. 

It  is  unnecessary  to  repeat  the  quotations  of  our  own  authorities, 
made  by  the  counsel,  for  they  all  declare  and  illustrate  the  same  prin- 
ciple. In  all  European  and  American  treatises,  we  find  the  same  sorts 
of  instances  given,  and  they  all  tend  to  enforce  the  broad  rule  of  gen- 
eral average  already  expressed  in  various  forms.  Thus  the  following 
instances   of  sacrifice  have  been  declared  cases  of  general  average: 


Sec.  1)  DISCHARGE   OF   DEFENDANT'S   OBLIGATION  495 

Goods  cast  overboard;  masts,  rigging,  anchors,  and  boats  cut  away; 
the  hire  of  Hghters,  and  the  goods  lost  thereby;  the  hire  of  armed 
convoy ;  the  damage  incurred  in  order  to  evade  a  hostile  pursuit ;  dam- 
age from  an  engagement  with  pirates,  including  the  rewards  to  the 
crew,  the  healing  of  the  wounded,,  and  the  burial  of  the  dead ;  the 
sinking  of  a  vessel  in  a  crowded  port,  in  order  to  prevent  the  fire  of  an 
adjoining  one  from  spreading  to  the  others ;  the  cutting  of  the  cable 
of  one  in  order  to  save  others ;  the  voluntary  stranding  of  the  ship ; 
ransom  from  pirates ;  compromise  with  captors ;  seeking  port  and  re- 
fitting after  an  inevitable  accident ;  and  the  excess  of  damage  or  ex- 
pense borne  by  one  of  several  ships,  sailing  in  company,  in  defending 
against  a  common  enemy. 

In  some  countries  a  consultation  is  required  before  the  sacrifice  is 
made ;  but  that  form  is  resorted  to  only  as  a  means  of  deciding  upon 
and  proving  its  necessity,  and  is  not  a  part  of  our  law,  for  it  may  be 
otherwise  proved.  An  analysis  of  the  cases  very  plainly  reveals  three 
things  as  the  elements  of  general  average :  a  purpose,  a  means,  and  a 
result;  a  design  to  avert  a  common  danger  by  a  sacrifice  voluntarily 
made,  and  a  successful  issue.  The  first  and  the  last  are  perfectly  defi- 
nite in  their  character,  while  the  means  must  always  remain  to  be  de- 
fined by  the  rule  of  prudence  when  the  danger  arises. 

Guided  by  the  light  of  the  rule  and  its  instances,  we  feel  constrained 
to  say  that  when  a  vessel  or  its  cargo  takes  fire  without  tlie  fault  of  the 
crew,  the  damage  done  by  the  application  of  water  or  steam  in  extin- 
guishing the  fire,  and  by  tearing  up  part  of  the  vessel  in  order  to  get 
at  it,  is  general  average.  The  danger  is  a  common  one,  and  the  cost  of 
the  remedy  must  be  common.  It  makes  no  difference  how  the  water  is 
applied ;  by  the  aid  of  fire-engines  on  the  land,  or  in  the  form  of  steam,' 
or  by  scuttling  the  vessel.  All  these  modes  were  tried  in  this  case 
before  the  success  was  complete.  They  are  all  to  be  treated  together, 
bcause  they  all  referred  to  the  same  peril.  They  were  the  means 
employed  for  the  purpose  of  averting  the  danger  in  which  they  were 
placed.  It  was  a  sacrifice  for  the  common  safety,  for  it  was  intention- 
ally injuring  or  destroying  all  that  part  of  the  cargo  that  could  be  thus 
affected  by  water,  in  order  to  save  the  rest.  The  result  was  successful 
if  a  single  article  was  saved  by  the  means  employed.  Without  attempt- 
ing to  follow  the  counsel  in  their  minute  criticism  upon  the  charge  to 
the  jury,  we  may  say  that  it  was  entirely  correct. 

There  is  an  exception  to  the  admission  of  evidence,  but  it  also  is  un- 
founded.   Judgment  affirmed.* 

8  See  also  Berkley  v.  Presgrave  (ISOl)  1  East,  220 ;  The  John  Perkins  (1857) 
13  Fed.  Cas.  No.  7.360. 

"The  rule  of  contribution  in  cases  of  jettison  has  its  origin  in  the  maritime' 
law  of  Rhodes,  of  which  the  text,  as  preserved  by  Paulus  (Dig.  L.  14,  tit.  2),  is: 
'Si  levandte  navis  gratis  jactus  meroium  factus  est,  omnium  contributioue  sar- 
datur,  quod  pro  omnibus  datum  est.'  The  principle  of  tlie  rule  has  betm  the 
frequent  subject  of  judicial  commpiit.  Lord  Bramwell,  iu  Wright  v.  Marwood, 
7  Q.  B.  D.  67,  said  that,  to  judge  from  the  way  in  which  contribution  ia 
claimed  in  England,  'it  would  seem  to  arise  from  an  implied  contract  inter  sa 


496  BENEFITS   CONFERRED   UNDER  COMPULSION  (Cll.  5 

II.  Indemnity  and  Contribution 

(A)  Between  Co-Obligors 

DECKER  V.  POPE. 

(At  Nisi  Prius  before  Lord  Mansfield,  C.  J.,  1757.  1  Selw.  N.  P.  [13th  Ed.l  91.) 
This  was  an  action  brought  by  an  administrator  de  bonis  non  of  a 
surety,  who,  at  defendant's  request,  had  joined  with  another  friend  of 
defendant's  in  giving  a  bond  for  the  payment  of  the  price  of  some 
goods  that  were  sold  to  defendant :  and  the  surety  having  been  obliged 
to  pay  the  money,  the  administrator  declared  against  the  defendant  for 
so  much  money  paid  to  his  use. 

Lord  Mansfield  directed  the  jury  to  find  for  the  plaintiff;  observ- 
ing, that  where  a  debtor  desires  another  person  to  be  bound  with  him 
or  for  him,  and  the  surety  is  afterwards  obliged  to  pay  the  debt,  this  is 
a  sufficient  consideration  to  raise  a  promise  in  law,  and  to  charge  the 
principal  in  an  action  for  money  paid  to  his  use.  He  added,  that  he 
had  conferred  with  most  of  the  judges  upon  it,  and  they  agreed  in  that 
opinion.® 

to  contribute  by  those  interested.'  The  present  Master  of  the  Rolls,  in  Bur- 
ton V.  English,  12  Q,  B.  D.  220,  disputed  that  view,  and  stated  his  opinion 
to  be  that  the  right  to  contribution  'does  not  arise  from  any  contract  at 
all,  but  from  the  old  Rhodian  laws,  and  has  been  incorporated  into  the  law 
of  England  as  the  law  of  the  ocean.  It  is  not  as  a  matter  of  contract, 
but  in  consequence  of  a  common  danger,  when  natural  justice  requires  that 
all  should  contribute  to  indemnify  for  the  loss  of  property  which  is  sacrificed 
by  one,  in  order  that  the  whole  adventure  may  be  saved.'  Whether  the  rule 
ought  to  be  regarded  as  matter  of  implied  contract,  or  as  a  canon  of  positive 
law  resting  upon  the  dictates  of  natural  justice,  is  a  question  which  their 
Lordships  do  not  consider  it  neeessai-y  to  determine."  Per  Lord  Watson  in 
Strang,  Steel  &  Co.  v.  A.  Scott  &  Co.  (1889)  14  A.  C.  601,  G07. 

"There  has  been  much  discussion  in  the  books  as  to  whether  the  right  to  a 
general  average  contribution  rests  upon  natural  justice,  or  upon  implied  con- 
tract, or  upon  a  rule  of  the  maritime  law,  known  to  and  binding  upon  all 
owners  of  ships  .and  cargoes.  But  the  difference  has  been  rather  as  to  forms 
of  expression,  than  as  to  substantial  principles  or  legal  results."  Per  Gray, 
J.,  in  Ralli  v.  Troop  (1895)  157  U.  S.  386,  394,  15  Sup.  Ct.  657,  39  L.  Ed.  742. 

For  a  full  discussion  of  the  law  of  general  average,  see  Abbott  on  Shipping, 
c.  VIII ;   Carver  on  Carriage  by  Sea,  c.  XII. 

9  In  Hunt  V.  Amidon  (1842)  4  Hill  (N.  Y.)  345,  40  Am.  Dec.  283,  Walworth, 
Ch.,  said :  "It  is  an  equitable  principle  of  very  general  application,  that  where 
one  person  is  in  the  situation  of  a  mere  surety  for  another,  whether  he  became 
so  by  actual  contract  or  by  operation  of  law,  if  he  is  compelled  to  pay  the 
debt  which  the  other  in  equity  and  justice  ought  to  have  paid,  he  is  entitled 
to  relief  against  the  other,  who  was  in  fact  the  principal  debtor.  And  when 
courts  of  law,  a  long  time  since,  fell  in  love  with  a  part  of  the  jurisdiction 
of  the  court  of  chancery,  and  substituted  the  equitable  remedy  of  an  action 
of  assumpsit  upon  the  common  money  counts,  for  the  more  dilatory  and  ex- 
pensive proceeding  by  a  bill  in  equity  in  certain  cases,  they  pei-mitted  the 
person  thus  standing  in  the  situation  of  surety,  who  had  been  compelled  to  pay 
money  for  the  principal  debtor,  to  recover  it  back  again  from  the  person  who 
ought  to  have  paid  it,  in  this  equitable  action  of  assumpsit  as  for  money  paid, 
laid  out  and  expended  for  his  use  and  benetit." 

For  other  cases  on  the  surety's  right  of  indemnity,  see  Ames'  Cases  on 
Suretyship,  499  et  seq. ;    Hening's  Cases  on  Suretyship,  218  et  seq. 


Sec.  1)  DISCHARGE   OP  DEFENDANT'S  OBLIGATION  497 


CITY  TRUST,  SAFE  DEPOSIT  &  SURETY  CO.  v.  AMERICAN 

BREWING  CO. 

(Court  of  Appeals  of  New  York,  1903.     174  N.  Y.  486,  67  N.  E.  62.) 

Appeal  from  an  order  of  the  Appellate  Division  of  the  Supreme 
Court  in  the  fourth  judicial  department,  sustaining  plaintiff's  excep- 
tions, ordered  to  be  heard  in  the  first  instance  by  the  Appellate  Divi- 
sion, and  granting  a  motion  for  a  new  trial. 

Parker,  C.  J.  Upon  this  review  the  complaint  must  be  accepted  as 
true,  and  from  it  it  appears  that  plaintiff  became  surety  on  a  bond  ex- 
ecuted by  John  M.  Kurtz  to  the  people  of  the  state  of  New  York  in 
the  sum  of  $1,000,  the  condition  being  that  if  a  liquor  tax  certificate 
should  be  granted  to  Kurtz  he  would  not  permit  any  gainbling  upon 
the  licensed  premises,  etc.  The  certificate  was  issued  to  Kurtz,  and 
subsequently  a  judgment  was  entered  against  Kurtz  and  this  plaintiff, 
as  principal  and  surety  on  the  bond,  for  a  breach  of  the  condition,  in 
that  Kurtz  had  maintained  on  the  licensed  premises  a  nickel-in-the-slot 
machine,  which  was  there  used  for  gambling  purposes. 

Before  the  trial  in  that  action  this  plaintiff  discovered  that  defendant 
herein  was  the  real  owner  of  such  liquor  tax  certificate  and  of  the 
nickel-in-the-slot  machine,  and  it  demanded  that  defendant  assume  the 
defense  of  the  action,  which  it  refused.  After  satisfying  said  judg- 
ment, plaintiff  brought  this  action,  alleging  in  the  complaint,  in  sub- 
stance, in  addition  to  the  facts  already  stated,  that  defendant  was  the 
real  owner  of  the  certificate  and  the  proprietor  of  the  business,  employ- 
ing Kurtz,  paying  his  compensation,  furnishing  the  articles  sold,  bear- 
ing all  losses,  and  pocketing  the  profits,  when  there  were  any;  that 
Kurtz  was  but  the  representative  and  servant  of  the  defendant  when 
he  applied  for  the  certificate  and  when  he  applied  to  plaintiff'  to  become 
surety;  that  plaintiff  supposed  he  was  the  principal — having  therefore 
an  incentive  to  obey  the  law — whereas  defendant  controlled  the  busi- 
ness and  premises,  -and  maintained  therein  a  nickel-in-the-slot  machine, 
operated  by  its  direction  and  for  its  profit. 

Defendant,  therefore,  had  the  benefit  of  plaintiff's  suretyship — for 
without  some  surety  a  certificate  could  not  have  been  issued — and  to 
its  conduct,  solely,  it  was  due  that  plaintiff  was  compelled  to  pay  the 
penalty  of  the  bond,  for  it  maintained  the  gambling  device  which  con- 
stituted a  breach  of  the  condition  of  the  bond ;  and  the  inquiry  is,  can 
plaintiff  recover  from  defendant  the  loss  which  the  latter  has  cost  it? 
Plaintiff  could  recover  of  Kurtz,  and  probably  would,  were  he  respon- 
sible ;  but  why  may  he  not  recover  from  the  party  which,  while  benefit- 
ing by  the  suretyship,  committed  the  injury? — from  the  hidden  prin- 
cipal that  by  a  wrongful  act,  prohibited  by  the  conditions  of  the  bond 
and  forbidden  by  statute,  caused  a  loss  to  this  plaintiff? 

Ever  since  Justinian  said,  "The  maxims  of  law  are  these:  To  live 
Thues.Quasi  Cont. — 32 


498  BENEFITS   CONFERRED   UNDER   COMPULSION  (Cll.  5 

honestly,  to  hurt  no  man,  and  to  give  every  one  his  due,"  it  has  been  a 
leading  object  of  jurisprudence  to  compel  wrongdoers  to  make  repara- 
tion. Now,  it  is  a  general  rule  of  law  that  a  person  commits  a  tort, 
and  renders  himself  liable  for  damages,  who  does  some  act  forbidden 
by  law,  if  that  act  causes  another  substantial  loss  beyond  that  suffered 
by  the  rest  of  the  public;  and  that  rule  covers  this  case. 

Defendant,  through  its  agent,  Kurtz,  induced  plaintiff  to  become  a 
surety  on  the  bond  for  Kurtz,  and  then,  in  violation  of  the  statute,  it 
conducted  a  nickel-in-the-slot  machine  on  the  premises,  by  means  of 
which  misconduct  the  surety  was  compelled  to  pay  the  penal  sum  of  the 
bond.  In  other  words,  defendant  committed  an  act  forbidden  by  law, 
and  the  direct  effect  of  its  act  was  to  cause  plaintiff  a  substantial  loss 
beyond  that  suffered  by  the  rest  of  the  public;  and  for  the  damage 
thus  sustained  it  should  respond  to  plaintiff. 

The  order  should  be  affirmed,  and  judgment  absolute  ordered  for 
plaintiff  on  the  stipulation,  with  costs.    Order  affirmed,  etc. 


NORTON  V.  COONS. 
(Supreme  Court  of  New  York,  1846.    3  Denio,  130.) 

Assumpsit  tried  before  Parker,  C.  J.,  at  the  Rensselaer  circuit,  in 
April,  1844.  The  plaintiffs  sued  for  contribution,  as  co-sureties  with 
the  defendant,  in  the  following  promissory  note : 

"$1,000.  One  year  after  date  we  jointly  and  severally  promise  to 
pay  to  the  order  of  Olive  Eldridge  one  thousand  dollars,  for  value  re- 
ceived.   Troy,  March  31st,  1841,  with  interest. 

"Schuyler  &  Akin. 
"E.  &  A.  Norton. 
"Joseph  H.  Coons." 

Schuyler  &  Akin  were  principal  debtors.  They  applied  to  Miss 
Eldridge  for  the  loan  of  $1,000,  and  offered  to  give  the  plaintiffs  as 
sureties ;  but  she  did  not  know  them,  and  required  that  the  defendant's 
name  should  also  be  furnished.  S.  &  A.  drew  and  signed  the  note,  and 
the  plaintiffs  signed  it  as  sureties.  The  plaintiffs  did  not  then  know 
that  the  defendant  was  to  sign;  nor  had  the  defendant  agreed  to  do 
so.  Two  days  afterwards,  Schuyler  &  Akin  saw  the  defendant  and 
asked  him  to  sign  the  note,  and  told  him  that  Miss  Eldridge  required 
his  name.  The  defendant  did  not  like  to  sign  the  note,  as  it  was  drawn 
jointly  and  severally.  S.  &  A.  told  him  he  would  run  no  risk  at  all,  as 
the  plaintiffs  were  abundantly  responsible;  and  that  he  would  not  be 
liable  so  long  as  they  were  responsible.  The  defendant  said  it  was 
something  he  would  not  do  for  every  body ;  but  as  he  had  dealt  a  good 
deal  with  S.  &  A.,  and  if  he  run  no  risk,  he  would  do  it.  S.  &  A.  told 
him  his  name  was  wanted  to  satisfy  Miss  Eldridge  that  the  note  was 
good ;   and  upon  these  considerations,  as  the  witness  expressed  it,  the 


Sec.  1)  DISCHARGE   OF   DEFENDANT'S   OBIJGATION  490 

defendant  put  his  name  to  the  note.  S.  &  A.  failed  within  a  few 
months;  and  the  plaintiffs  were  afterwards  compelled  to,  and  diJ  pay 
and  take  up  the  note.  After  S.  &  A.  failed,  the  defendant  said  he  was 
on  the  note  with  other  men,  and  expected  to  lose  one  half  of  it,  unless 
S.  &  A.  would  secure  him  as  they  had  promised  to  do. 

The  judge  charged  the  jury,  among  other  things,  that  if  it  was  the 
understanding  of  the  plaintiffs  when  they  signed  the  note  that  they 
were  to  be,  or  if  they  intended  to  be  the  sole  sureties  of  Schuyler  & 
Akin,  and  did  not  know  that  the  defendant  was  to  sign  the  note,  and 
the  defendant  subsequently  signed  without  the  knowledge  of  the  plain- 
tiffs, under  an  agreement  with  Schuyler  &  Akin  that  he  was  only  to  be 
responsible  in  case  the  plaintiffs  were  unable  to  pay,  and  signed  to 
satisfy  Miss  Eldridge,  then  the  defendant  was  not  such  a  co-surety  as 
would  make  him  liable  to  contribution  to  the  plaintiff's ;  and  in  such 
lease  that  it  was  not  necessary  to  show  an  express  agreement  made  be- 
tween the  plaintiffs  and  the  defendant,  as  to  their  relative  liability  on 
the  note.  The  jury  found  a  verdict  for  the  defendant;  and  the  plain- 
tiffs move  for  a  new  trial  on  a  bill  of  exceptions. 

Bronson,  C.  J.^°  The  doctrine  of  contribution  among  sureties  is 
founded  on  a  general  principle  of  equity  and  justice.  Sureties  are  in 
aequali  jure,  and  must  bear  the  burden  equally.  Contribution  may  be 
enforced  whether  they  were  bound  jointly  or  severally;  by  the  same, 
or  by  different  instruments ;  and  although  the  party  who  sues  did  not 
know  at  the  time  he  became  a  surety,  that  the  defendant  was  also  a 
surety.  The  order  of  time  in  which  they  became  bound  is  not  a  materi- 
al inquiry.  The  only  question  is,  whether  they  were  in  fact  sureties 
for  a  principal  debtor,  and  in  relation  to  one  and  the  same  transaction. 
Courts  of  law  have  borrowed  their  jurisdiction  on  this  subject  from 
courts  of  equity;  and  along  with  it  they  have  taken  the  maxim  that 
equality  is  equity.  The  obligation  to  contribute  may,  of  course,  be 
modified  by  contract  between  the  sureties ;  and  without  any  contract,  a 
second  surety  may  enter  into  the  obligation  for  his  principal  in  such  a 
form  that  the  first  surety  cannot  call  on  him  for  contribution.  But  that 
is  only  where,  by  the  terms  of  his  undertaking,  he  treats  all  thosf  who 
have  preceded  him  as  principal  debtors.  And  in  such  a  case,  as  he  re- 
fuses to  take  upon  himself  the  burden  of  a  co-surety,  he  renounces  the 
benefit  incident  to  tliat  relation.  If  he  will  not  contribute  when  the 
other  surety  pays  the  debt,  he  shall  not  have  contribution  when  he  pays 
it  himself.  These  principles  will  be  sufficiently  illustrated  and  establish- 
ed by  a  reference  to  a  few  cases.  Deering  v.  The  Earl  of  Winchelsea, 
2  B.  &  P.  270;  1  Cox,  318,  s.  c. ;  Campbell  v.  Mesier,  4  John.  Ch.  334, 
8  Am.  Dec.  570;  Davies  v.  Humphreys,  6  Mees.  &  VVel.  167;  Mayhew 
V.  Crickett,  2  Swanst.  193  ;  Warner  v.  Price,  3  Wend.  397;  Lapham  v. 
Barnes,  2  Vt.  213;  Harris  v.  Warner,  13  Wend.  400;  Craythorne  v. 
Swinburne,  14  Ves.  160;  Story  on  Cont.  §  584;  Pitman,  Pr.  &  Su. 
147.     *     *    * 

10  A  portion  of  the  opinion  Is  omitted. 


500  BENEFITS  CONFERRED  UNDER  COMPULSION         (Ch.  5 

It  is  of  no  consequence  in  a  legal  point  of  view,  that  the  plaintiffs 
did  not  know  when  they  signed  the  note  that  the  defendant  was  also  to 
be  a  surety.  The  defendant  made  himself  a  co-surety  by  becoming  a 
party  to  the  same  contract,  without  any  qualification  of  his  undertaking. 
This  was  admitted  by  Lord  Eldon  in  Craythorne  v.  Swinburne,  14 
Ves.  160;  and  is  abundantly  established  by  Warner  v.  Price,  3  Wend. 
397,  and  Lapham  v.  Barnes,  2  Vt,  213.  The  last  case  goes  much  be- 
yond the  one  at  bar ;  for  there  the  second  surety  did  not  sign  the  note 
until  after  it  had  become  a  valid  security  in  the  hands  of  the  creditor; 
while  here  the  note  never  had  any  vitality  until  after  all  the  parties  had 
signed  it. 

Nor  do  I  see  that  what  passed  between  the  principal  debtors  and 
the  defendant  can  in  any  way  affect  the  question.  Notwithstanding  all 
that  was  said,  the  defendant  did  become  a  co-surety  with  the  plaintiffs ; 
and  by  that  act  he  acquired  all  the  rights,  and  became  subject  to  all  the 
liabilities  incident  to  that  relation.  The  mistake  which  Schuyler  & 
Akin  made  when  they  undertook  to  expound  the  law,  by  telling  the  de- 
fendant what  would  be  the  force  or  effect  of  his  contract,  could  not 
change  or  modify  the  contract  itself,  nor  the  consequences  which  must 
flow  from  it. 

Much  stress  is  laid  upon  the  fact  that  this  is  an  action  of  assumpsit, 
and  the  circumstances  are  such  as  to  repel  the  idea  that  a  promise  to 
contribute  was  ever  made.  But  when  it  was  settled  that  courts  of 
law  would  enforce  contribution  between  sureties,  what  was  before  only 
an  equitable,  became  a  legal  obligation ;  and  where  there  is  a  legal 
right  to  demand  a  sum  of  money,  and  there  is  no  other  remedy,  the  law 
will,  for  all  the  purposes  of  a  remedy,  imply  a  promise  of  payment. 
Birkley  v.  Presgrave,  1  East,  220;  Bachelder  v.  Fiske,  17  Mass.  464; 
Cowell  V.  Edwards,  2  B.  &  P.  268 ;   Chit,  on  Cont.  24,  Ed.  of  1842. 

We  think  the  plaintiffs  are  entitled  to  recover.    New  trial  granted.^^ 


McCREADY  v.  VAN  ANTWERP. 
(Supreme  Court  of  New  York,  ISSl.    24  Hun,  322.) 

Appeal  from  a  judgment  in  favor  of  the  plaintiff,  entered  upon  the 
trial  oi  this  action  by  the  court  without  a  jury. 

Brady,  J.  It  appears  that  the  plaintiff  and  the  defendant  executed 
a  joint  and  several  bond  or  obligation  by  which  they  agreed  to  pay  to 
certain  trustees,  on  the  5th  of  December,  1882,  the  sum  of  $100,000, 
and  to  pay  interest  thereon  semi-annually,  on  the  fifth  days  of  June 
and  December  in  each  year,  at  the  rate  of  six  per  cent  per  annum,  the 
bond  being  secured  by  a  mortgage  of  even  date  on  certain  real  estate 
belonging  to  them.     Six  montlis'  interest,  which  amounted  to  $3,000. 

11  For  other  cases  on  the  surety's  right  to  contribution  see  Ames'  Cases  on 
Suretyship,  533  et  seq. ;    Uening's  Cases  on  Suretyship,  325  et  seii. 


Sec.  1)  DISCHARGE   OF   DEFENDANT'S  OBLIGATION  501 

became  due  and  payable  on  the  bond  on  the  5th  day  of  December,  1878. 
The  plaintiff  paid  the  whole  of  it,  namely,  $3,000,  $1,500  being  paid 
on  the  26th  of  December,  1878,  and  $1,500  on  the  22d  of  January, 
1879,  with  thirteen  dollars  and  seventy  cents  on  the  latter  as  interest 
upon  the  $1,500,  which  was  not  paid  when  it  became  due.  But  the 
defendant  paid  nothing  to  the  obligees  in  the  bond  in  regard  to  that 
interest,  and  nothing  to  the  plaintiff  on  account  of  the  payment  made 
for  him. 

The  defendant  and  appellant  interposed  no  set-off  or  counterclaim 
against  the  plaintiff  or  the  obligees  on  the  bond,  and  relies  upon  the 
proposition  that  the  payment  by  the  plaintiff  was  gratuitous ;  that  he 
was  not  compelled  to  pay  it,  nor  requested  nor  authorized  to  do  so  by 
the  defendant. 

It  is  apparent,  however,  that  there  was  a  delay  in  the  payment  of 
one-half  of  the  $3,000,  because  it  was  not  made  until  the  22d  of  January 
1879,  although  it  became  due  on  the  5th  of  December,  1878.  The  obli- 
gation in  this  case  was  joint  and  several,  as  already  suggested ;  and  the 
bonds  having  been  secured  by  a  mortgage  the  right  of  the  mortgagee  to 
foreclose,  if  the  interest  were  not  paid,  cannot  be  questioned.  The 
non-payment  of  the  interest  imperiled  the  estate,  for  the  protection  of 
which  the  whole  interest  was  paid,  the  plaintiff's  portion  as  well  as  the 
defendant's  portion,  and  such  payment  may  well  be  regarded  as  com- 
pulsory. An  examination  of  the  question  presented  leads  to  the  con- 
clusion that  there  is  no  good  reason  in  law  or  in  morals  why  the  de- 
fendant should  not  be  required  to  pay  his  part  of  the  money  thus  ex- 
pended, and  inferentially  for  his  benefit. 

It  is  true  that  the  rule  of  contribution  applies  to  sureties  and  not  to 
original  joint  debtors.  But  as  the  parties  herein  were  not  copartners 
they  may  be  regarded  as  quasi  sureties  for  each  other;  and  if  that  be 
not  a  possible  result,  then  the  plaintiff  ought  in  justice  to  be  regarded 
and  to  be  declared  the  equitable  assignee  of  the  claim  of  the  obligees 
on  the  bond  against  the  defendant  to  the  extent  of  one-half  of  the 
interest  due. 

As  already  suggested  there  does  not  seem  to  be  any  reason,  aside 
from  some  refinements  growing  out  of  the  old  rules  of  special  pleading, 
why  if  two  original  debtors  are  bound  to  pay  a  sum  of  money  and  one 
pays  the  whole  of  it  the  other  should  not  respond,  particularly  in  a  case 
like  this  where  there  are  no  copartnership  complications.  Where  such 
a  controversy  as  this  arises  between  partners  it  is  true  a  different  rule 
would  prevail,  because  the  liability  of  each  of  them  to  the  other  would 
depend  upon  the  result  of  an  account  to  be  taken,  in  which  various 
transactions  with  various  phases  interpose. 

There  can  be  no  injustice  in  the  adoption  of  such  a  rule  here,  inas- 
much as  it  would  be  controlled  in  its  application  by  all  existing  rights, 
either  as  against  the  obligees  on  the  bond  or  the  plaintiff  himself,  for 
this  would  secure  for  the  co-obligor  for  whom  payment  was  made 
the  ability  to  make  any  defense  which  he  could  set  up  if  the  action  were 


502  BENEFITS   CONFERRED   UNDER   COMPULSION  (Ch.  5 

brought  directly  upon  the  bond ;  besides,  to  maintain  the  rigorous  rule 
which  is  called  into  requisition  by  the  defendant  might  lead  to  great 
injustice.  In  a  case  like  this,  for  example,  where  the  bond  is  secured 
by  a  pledge  of  real  estate,  the  plaintiff  might  be  compelled  to  make 
several  similar  payments  prior  to  the  time  when  the  mortgage  became 
due  in  order  to  protect  the  estate  from  foreclosure,  a  proceeding  which 
might  be  disastrous. 

The  defendant,  as  already  suggested,  being  under  obligations  to  pay, 
and  having  omitted  to  do  so,  and  the  omission  exposing  the  pledge  to 
sale,  and  having  no  defense  except  a  technical  one  resting  upon  a  doubt- 
ful rule  of  law  in  its  general  application,  we  think,  for  the  reason 
assigned,  that  the  judgment  should  be  affirmed,  with  costs. 

Judgment  affirmed,  with  costs.^^ 


(B)  Between  Tort-Feasors 
MERRYWEATHER  v.  NIXAN. 

(Court  of  King's  Bench,  1799.     8  Term  R.  186.) 

One  Starkey  brought  an  action  on  the  case  against  the  present 
plaintiff  and  defendant  for  an  injury  done  by  them  to  his  reversionary 
estate  in  a  mill,  in  which  was  included  a  count  in  trover  for  the  ma- 
chinery belonging  to  the  mill ;  and  having  recovered  £840.  he  levied 
the  whole  on  the  present  plaintiff,  who  thereupon  brought  this  action 
against  the  defendant  for  a  contribution  of  a  moiety,  as  for  so  much 
money  paid  to  his  use. 

At  the  trial  before  Mr.  Baron  Thomson  at  the  last  York  assizes  the 
plaintiff  was  nonsuited,  the  learned  Judge  being  of  opinion  that  no 

12  Accord:  Harvey  v.  Drew  (1S7G)  82  111.  60G;  Durbin  v.  Kuney  (1S90)  19 
Or.  71,  23  Pac.  661. 

See,  also,  Aspinwall  v.  Sacchi  (1S74)  57  N.  Y.  331,  where  Earl,  C.  said:  "It 
will  thus  be  seen  that  it  is  no  answer  to  a  claim  for  contribution  that  it  can- 
not be  based  upon  any  contract,  that  the  parties  are  severally  and  not  jointly 
bound,  that  they  are  bound  by  sejiarate  instruments,  that  they  are  liable 
for  the  same  debt  or  obligation  in  different  amounts,  that  it  can  make  no  dif- 
ference whether  they  be  principal  debtors  or  mere  sureties,  and  that  the  doc^ 
trine  of  contribution  rests  upon  the  broad  principle  of  justice,  that  when  one 
has  discharged  a  debt  or  obligation,  which  others  were  equally  bound  with 
him  to  discharge,  and  thus  removed  a  common  burden,  the  others,  who  have 
received  a  benefit  ought,  in  conscience,  to  refund  to  him  a  ratable  proportion. 
This  is,  therefore,  a  proper  case  for  contribution." 

Contribution  Between  Statutory  Co-Obligors. — In  Manthey  v.  Schueler 
(1914)  126  Minn.  87,  147  N.  W.  824,  Ann.  Cas.  1915D,  241,  plaintiff  and  de- 
fendant were  the  two  grandfathers  of  four  young  children,  whose  father  had 
deserted  them  and  whose  mother  was  unable  to  support  them.  By  statute  a 
duty  to  support  such  dependent  children  was  imposed  on  their  grandparents. 
Plaintiff  had  supported  three  of  the  children  and  defendant  had  supported  one 
and  refused  to  support  or  aid  in  support  of  the  others.  The  court  sustained 
an  action  to  recover  contribution,  saying:  "The  burden  was  a  common  and 
equal  one  imposed  by  the  statute  and  rightly  assumed  by  either  of  the  grand- 
parents. Equality  of  burden  results  equitably  in  equality  of  payment  and 
one  properly  paying  more  than  his  proportion  may  recover  at  law  by  way  of 
contribution." 


Sec.  1)  DISCHARGE    OF   DEFENDANT'S   OBLIGATION  503 

contribution  could  by  law  be  claimed  as  between  joint  wrong-doers; 
and  consequently  this  action  upon  an  implied  assumpsit  could  not  be 
maintained  on  the  piere  ground  that  the  plaintiff  had  alone  paid  the 
money  which  had  been  recovered  against  him  and  the  other  defendant 
in  that  action. 

Chambre  now  moved  to  set  aside  the  nonsuit ;  contending  that,  as 
the  former  plaintiff  had  recovered  against  both  these  parties,  both  of 
them  ought  to  contribute  to  pay  the  damages.    But 

Lord  Kenyon,  C.  J.,  said  there  could  be  no  doubt  but  that  the  non- 
suit was  proper;  that  he  had  never  before  heard  of  such  an  action 
having  been  brought  where  the  former  recovery  was  for  a  tort.  That 
the  distinction  was  clear  between  this  case  and  that  of  a  joint  judg- 
ment against  several  defendants  in  an  action  of  assumpsit.  And  that 
this  decision  would  not  affect  cases  of  indemnity,  where  one  man  em- 
ployed another  to  do  acts,  not  unlawful  in  themselves,  for  the  purpose 
of  asserting  a  right.   . 

Rule  refused.^*  

WOOLEY  V.  BATTE. 

(At  Nisi  Prius,  l)efore  Park,  J.,  1826.     2  Car.  &  P.  417.) 

Assumpsit  for  contribution.  Plea — General  issue.  The  plaintiff  and 
defendant  were  joint  proprietors  of  a  stage  coach ;  and  damages  had 
been  recovered  in  an  action  on  the  case,  against  the  former  only,  for 
an  injury  done  to  Mrs.  Jeavons,  a  passenger,  by  reason  of  the  neg- 
ligence of  the  coachman.  The  plaintiff  had  paid  the  whole  of  the 
damages  and  costs,  and  brought  the  present  action  to  recover  half  the 
amount  from  the  defendant  as  his  partner. 

For  the  plaintiff,  an  examined  copy  of  the  judgment  against  him  at 
the  suit  of  the  husband  of  Mrs.  Jeavons,  was  put  in.  The  declara- 
tion was  in  case,  and  stated  the  injury  to  have  arisen  from  the  negli- 
gence of  the  present  plaintiff  and  his  servants,  (in  the  usual  form.) 
It  was  also  proved,  that  the  plaintiff  paid  the  amount  of  damages 
and  costs  in  that  action,  amounting  to  £176.,  under  an  execution; 

18  In  Jolinson  v.  Torpy  (1892)  35  Neb.  C04,  53  N.  W.  575,  37  Am.  St.  Rep.  447, 
plahitiff  and  defendant,  botli  saloonkeepers,  wrongfully  sold  Ihiuor  to  a  "com- 
mon drunkard,"  wliich  caused  or  contributed  to  his  death.  The  widow  of  de- 
ceased had  recovered  fi-om  plaintiff  under  the  civil  danjage  act.  Held,  no 
right  to  enforce  contribution,  since  plaintiff  nmst  be  presuuicd  to  have  known 
that  the  sale  of  liquor  to  the  deceased  was  a  wrongful  aud  unlawful  act,  for 
wliich  he  was  liable  to  be  punished  by  indictment. 

In  Sutton  V.  Morris  (1S9S)  102  Ivy.  611,  41  S.  W.  127,  the  parties,  seemingly 
in  good  faith,  cut  timber  on  another's  land  in  violation  of  a  criminal  statute. 
Held,  no  right  to  enforce  contribution  with  respect  to  the  hue  and  costs  impos- 
ed on  plaintiff  pursuant  to  an  indictment. 

In  Sharp  v.  Call  (1903)  C9  Neb.  72,  95  N.  W.  16,  98  N.  W.  1(X)4,  the  trustees 
of  a  corporation  knowingly  paid  out  all  its  assets  to  .stockholders  in  the  face 
of  pending  claims  by  creditors.  Held,  that  one  trustee  who  has  been  forced 
to  make  restitution  for  such  misappropriation  cannot  have  contribution  against 
a  co-trustee. 

Contra :  City  of  Ft.  Scott  v.  Kansas  City,  Ft.  S.  &  M.  R.  Co.  (1903)  66  Kan. 
€10,  72  Fac.  238  (statutory). 


504  BENEFITS  CONFERRED  UNDER  COMPULSION         (Ch.  5 

that  the  plaintiff  and  the  defendant  were  partners  in  the  stage  coach; 
and  that  the  plaintiff  was  not  personally  present  when  the  accident 
happened. 

Jervis,  for  the  defendant,  contended,  that  as  the  action  brought 
against  the  plaintiff  was  an  action  on  the  case  for  negligence,  the 
plaintiff  and  defendant  were  joint  tort  feazors;  and,  therefore,  one 
only  being  sued,  he  could  not  recover  contribution  from  the  other;  and 
he  cited  Merryweather  v.  Nixan. 

Campbell,  for  the  plaintiff.  No  doubt  the  case  of  Merryweather 
V.  Nixan  is  good  law,  and  one  tort  feazor  sued  alone  cannot  recover 
contribution  from  another,  who  was  a  joint  tort  feazor  with  him;  but 
here  it  is  proved,  that  there  was  no  personal  fault  in  the  plaintiff. 
The  declaration  of  Jeavons  against  the  present  plaintiff  might,  with 
equal  propriety,  have  been  in  assumpsit;  in  which  case,  the  present 
plaintiff  might  clearly  have  recovered  contribution  ;  and  it  can  hardly 
be  contended,  that  the  plaintiff  should  be  deprived  of  his  contribu- 
tion by  Mr.  Jeavons'  pleader  drawing  his  declaration  in  one  form  in- 
stead of  another. 

Park,  J.     I  think  the  plaintiff  is  entitled  to  recover. 

Verdict  for  the  plaintiff — Damages,  iSS.^* 


ACHESON  v.  MILLER. 

(Supreme  Court  of  Ohio,  1853.     2  Ohio  St.  203,  59  Am.  Dec.  663.) 

Error  to  the  common  pleas  of  Trumbull  county. 

Caldwell,  J.^^  The  suit  in  the  court  below  was  one  for  contribu- 
tion. The  plaintiff  in  the  action,  and  the  defendant  with  four  others, 
were  the  sureties  for  Garry  Lewis  on  a  draft  for  five  thousand  dollars. 
Lewis  became  insolvent,  and  judgment  was  rendered  against  all  the 
indorsers,  and  also  a  judgment  against  Lewis,  the  principal.  Execu- 
tion was  issued  and  four  of  the  indorsers,  of  whom  Reuel  Miller  was 

1*  Accord:  Bailey  v.  BivssirLg  (1859)  28  Conn.  455,  in  which  case  tlie  court 
said:  "The  reason  assigned  in  the  books  for  denj-ing  contribution  among  tres- 
passers is,  that  DO  right  of  action  can  be  based  on  a  violation  of  law,  that  is, 
where  the  act  is  Icnown  to  be  such  or  is  apparently  of  that  character.  A  guilty 
trespasser  cannot  be  allowed  to  appeal  to  the  law  for  an  indemnity,  for  he  has 
placed  himself  without  its  pale  by  contemning  it,  and  must  asU  in  vain  for  its 
interposition  In  his  behalf.  If,  however,  he  was  innocent  of  an  illegal  pur- 
pose, ignorant  of  the  nature  of  the  act,  which  was  apparently  correct  and 
proper,  the  rule  will  change  with  its  reason,  and  he  may  have  an  indemnity, 
or  as  the  case  may  be  a  contribution.  *  *  *  We  must  look  for  personal 
participation,  personal  culpability,  personal  knowledge.  If  we  do  not  find 
these  circumstances,  but  pei'ceive  only  a  liability  in  the  eye  of  the  law,  grow- 
ing out  of  a  mere  relation  to  tlie  perpetrator  of  the  wrong,  the  maxim  of  law 
that  there  is  no  contribution  among  wrongdoers  is  not  to  be  applied." 

The  employer,  who,  in  accordance  with  the  doctrine  of  respondeat  superior, 
has  been  forced  to  pay  damages  to  a  third  party  for  the  tort  of  his  servant, 
may  recover  iritlemnity  from  such  servant.  Bailey  v.  Bussing  (1S59)  28  Conn. 
455;  (Jrand  Trunk  Railwav  Co.  v.  Latham  (1874)  (\o  Me.  177;  Bradley  v. 
Rosenthal  (1908)  154  Cal.  420,  97  Pac,  875,  129  Am,  St.  Rep.  171. 

15  A  portion  of  the  opinion  is  omitted. 


Sec.  1)  DISCHARGE   OF   DEFENDANT'S   OBLIGATION  505 

one,  having  indemnified  the  sheriff,  directed  him  to  levy  on  a  store 
of  goods  recently  the  property  and  in  the  possession  of  Garry  Lewis, 
the  principal  debtor,  but  which  goods  were  assigned  about  that  time 
to  Daniel  Gilbert.  Gilbert  brought  suit  against  the  sheriff  and  the 
four  indorsers  that  directed  him  to  levy,  and  recovered  a  judgment 
for  the  sum  of  five  thousand  three  hundred  and  fifty-four  dollars  and 
sixty-one  cents,  the  value  of  the  goods,  which  judgment  was  paid 
off  by  these  four  indorsers.  Miller  paid  the  one  fourth  of  it.  The 
goods  were  sold  by  the  sheriff,  and  applied  on  the  judgment,  and 
paid  on  it  three  thousand  one  hundred  and  thirty-five  dollars  and 
seventy-three  cents.  Acheson,  not  having  anything  to  do  with  the 
levy  on  the  goods,  has  paid  nothing,  and  this  suit  was  brought  by 
Miller  against  Acheson  to  require  him  to  contribute  his  share  of  the 
three  thousand  one  hundred  and  thirty-five  dollars  and  seventy-three 
cents  paid  on  the  judgment  by  the  sale  of  the  goods. 

On  the  trial  in  the  court  of  common  pleas,  after  the  plaintiff  had 
given  in  his  evidence  and  rested,  the  defendant  moved  for  a  nonsuit, 
which  the  court  refused,  and  gave  judgment  for  the  plaintiff.  The 
defendant  presented  a  bill  of  exceptions,  setting  forth  the  evidence, 
which  was  signed  and  made  a  part  of  the  record.  The  question  pre- 
sented on  this  record  is,  whether  contribution  can  be  had  in  such  a 
case. 

It  is  said,  on  the  part  of  the  plaintiff  in  error,  that  Miller  and  those 
who  acted  with  him  were  wrong-doers — that  they  committed  a  tres- 
pass in  having  the  goods  levied  on,  and  that  therefore  he  is  not  entitled 
to  contribution  for  the  payment  made  by  the  proceeds  of  such  goods. 

The  rule  that  no  contribution  lies  between  trespassers,  we  apprehend, 
is  one  not  of  universal  application.  We  suppose  it  only  applies  to 
cases  where  the  persons  have  engaged  together  in  doing  wantonly  or 
knowingly  a  wrong.  The  case  may  happen  that  persons  may  join  in 
performing  an  act  which  to  them  appears  to  be  right  and  lawful,  but 
which  may  turn  out  to  be  an  injury  to  the  rights  of  some  third  party, 
who  may  have  a  right  to  an  action  of  tort  against  them. 

In  such  case,  if  one  of  the  parties  who  has  done  the  act  has  been 
compelled  to  pay  the  amount  of  the  damage,  is  it  not  reasonable  that 
those  who  were  engaged  with  him  in  doing  the  injury  should  pay  theii 
proportion?  The  common  understanding  and  justice  of  humanity 
would  say  that  it  would  be  just  and  right  that  each  of  the  parties 
to  the  transaction  should  pay  his  proportion  of  the  damage  done  by 
their  joint  act ;  and  we  see  no  reason  why  the  moral  sense  of  the 
court  shall  be  shocked  by  such  a  result.  And  we  think  this  view  of 
the  case  is  fully  sustained  by  the  cases  cited  by  counsel  for  the  defend- 
ant in  error.  In  the  case  of  Adamson  v.  Jarvis,  4  Bing.  66,  in  speak- 
ing on  this  subject.  Best,  C.  J.,  says:  "From  the  concluding  part  of 
Lord  Kenyon's  judgment  in  Merryweather  v.  Nixan,  8  T.  R.  186,  and 
from  reason,  justice,  and  sovmd  policy,  the  rule  that  wrongdoers  can 
not  have  redress   or  contribution  against  each  other  is  confined  to 


506  BENEFITS   CONFERRED   UNDER   COMPULSION  (Cll.  5 

cases  where  the  person  seeking  redress  must  be  presumed  to  have 
known  that  he  was  doing  a'  wrong." 

The  same  doctrine  is  distinctly  laid  down  in  the  case  of  Betts  v. 
Gibbins,  2  Ad.  &  El.  57.  From  these  and  other  cases  referred  to,  we 
think  the  reasonable  and  common-sense  rule  and  the  legal  one  are  the 
same,  viz. :  That  when  parties  think  they  are  doing  a  legal  and  prop- 
er act,  contribution  will  be  had;  but  when  the  parties  are  conscious 
of  doing  a  wrong,  courts  will  not  interfere. 

But  the  question  arises  whether  this  is  a  case  where  contribution 
is  sought  between  wrong-doers.  We  think  not.  The  suit  in  this  case 
is  not  brought  by  Miller  for  contribution  towards  the  amount  he  has 
paid  in  the  judgment  in  trespass,  but  for  Acheson's  proportion  of  the 
amount  paid  on  the  judgment  by  the  sale  of  the  goods.  These  goods, 
by  the  judgment  and  satisfaction  in  the  trespass  case,  became  the 
property  of  the  defendants  in  that  case.     *     *     * 

We  do  not  discover  any  error  in  the  record  of  the  court  of  common 
pleas;  the  judgment  of  that  court  will  therefore  be  affirmed.^" 


ARMSTRONG  COUNTY  v.  CLARION  COUNTY. 

(Supreme  Court  of  Pennsylvania,  1S70.     66  Pa.  218,  5  Am.  Rep.  368.) 

Error  to  the  Court  of  Common  Pleas  of  Clarion  County. 

This  was  an  action  of  assumpsit  by  the  County  of  Armstrong  against 
the  County  of  Clarion  for  contribution.  At  the  trial  the  court  di- 
rected a  nonsuit. 

Read,  J.^^  The  bridge  across  Red  Bank  creek,  between  the  coun- 
ties of  Armstrong  and  Clarion,  at  the  place  known  as  the  Rockport 
Mills,  was  a  county  bridge,  maintained  and  kept  in  repair  at  the 
joint  and  equal  charge  of  both  counties.  Whilst  John  A.  Humphreys 
was  crossing  the  bridge  it  fell  and  he  was  severely  injured ;  he  brought 
suit  for  damages  against  the  county  of  Armstrong ;  and  on  the  trial, 
under  the  charge  of  the  court,  there  was  a  verdict  for  defendant.  This 
was  reversed  on  writ  of  error  (6  P.  F.  Smith  [56  Pa.]  204) ;  and  upon 
a  second  trial  there  was  a  verdict  for  the  plaintiff  for  $1,100  damages, 
on  which  judgment  was  entered.  This  judgment,  with  interest  and 
costs,  was  paid  by  Armstrong  county,  and  the  present  suit  is  to  recover 
contribution  from  Clarion  county.  On  the  trial  the  learned  judge  non- 
suited the  plaintiff  on  the  ground  that  one  of  two  joint  wrongdoers 
cannot  have  contribution  from  the  other. 

16  While  the  principal  case  is  hardly  more  than  a  dictum,  the  authorities  are 
in  accord.  Vandiver  v.  Pollak  (189;5)  07  Ala.  4G7,  12  South.  473,  19  L.  R.  A. 
628;  Farwell  v.  Becker  (1S89)  129  111.  261,  21  N.  E.  792.  6  L.  R.  A.  40O;  16  Am. 
St.  Rep.  267.  Compare  Paddock- Ha wley  Iron  Co.  v.  Rice  (1903)  179  Mo.  480, 
78  S.  W.  634. 

17  The  statement  of  facts  is  omitted. 


Sec.  1)  DISCHARGE   OF   DEFENDANT'S   OBLIGATION  507 

The  commissioners  of  the  two  counties  had  examined  the  bridge 
in  the  summer  and  ordered  some  repairs  which  were  made.  There 
can  be  little  doubt  that  morally  Clarion  county  was  bound  to  pay  one- 
half  of  the  sum  recovered  from  and  paid  by  Armstrong  county,  and 
the  question  is,  does  not  the  law  make  the  moral  obligation  a  legal  one  ? 
Merryweather  v.  Nixan,  8  Term  R.  186,  the  leading  case  on  the  sub- 
ject, was  of  a  joint  injury  to  real  estate,  and  for  the  joint  conversion  of 
personal  property,  being  machinery  in  a  mill.  In  Colburn  v.  Patmore, 
1  Cn,  M.  &  R.  7Z,  the  proprietor  of  a  newspaper  who,  for  a  libel  pub- 
lished in  it,  was  subjected  to  a  criminal  information,  convicted  and 
fined,  sought  to  recover  from  his  editor  who  was  the  author  of  the 
libel,  the  expenses  which  he  had  incurred  by  his  misfeasance;  Lord 
Lyndhurst  said :  "I  know  of  no  case  in  which  a  person  who  has  com- 
mitted an  act  declared  by  the  law  to  be  criminal,  has  been  permitted  to 
recover  compensation  against  a  person  who  has  acted  jointly  with  him 
in  the  commission  of  the  crime." 

So  in  Arnold  v.  Clifford,  2  Sumn.  238,  Fed.  Cas.  No.  555,  it  was 
held,  a  promise  to  indemnify  the  publisher  of  a  libel  is  void.  "No  one," 
said  Judge  Story,  "ever  imagined  that  a  promise  to  pay  for  the  poison- 
ing of  another  was  capable  of  being  enforced, in  a  court  of  justice." 

In  Miller  v.  Fenton,  11  Paige  (N.  Y.)  18,  the  wrongdoers  were  two 
of  the  officers  of  a  bank,  who  had  fraudulently  abstracted  its  funds, 
and  of  course  there  could  be  no  contribution,  between  criminals.  In 
the  case  of  The  Attorney-General  v.  Wilson,  4  Jurist,  1174,  cited  in 
the  above  case  by  the  chancellor,  and  also  reported  in  1  Craig  &  Phil- 
lips, 1,  where  it  was  contended  that  all  the  persons  charged  with  the 
breach  of  trust  should  be  made  parties,  Lord  Cottenham  said:  "In 
cases  of  this  kind  where  the  liability  arises  from  the  wrongful  act  of 
the  parties,  each  is  liable  for  all  the  consequences,  and  there  is  no 
contribution  between  them,  and  each  case  is  distinct,  depending  upon 
the  evidence  against  each  party.  It  is  therefore  not  necessary  to  make 
all  parties  who  may  more  or  less  have  joined  in  the  act  complained  of." 
Seddon  v.  Connell,  10  Simons,  81,  is  to  the  same  effect. 

In  Story  on  Partnership,  §  220,  after  speaking  of  the  general  rule 
that  there  is  no  contribution  between  joint  wrongdoers,  the  author 
says:  "But  the  rule  is  to  be  understood  according  to  its  true  sense  and 
meaning,  which  is,  where  the  tort  is  a  known  meditated  wrong,  and 
not  where  the  party  is  acting  under  the  supposition  of  the  entire  in- 
nocence and  propriety  of  the  act,  and  the  tort  is  merely  one  by  con- 
struction, or  inference  of  law.  In  the  latter  case,  although  not  in  the 
former,  there  may  be  and  properly  is,  a  contribution  allowed  by  law 
for  such  payments  and  expenses  between  constructive  wrongdoers, 
whether  partners  or  not."  The  case  of  Adamson  v.  Jarvis,  cited 
by  the  learned  commentator,  is  in  4  Bing.  66,  in  which  Lord  Chief 
Justice  Best,  after  noticing  Merryweather  v.  Nixan,  says:  "The  case 
of  Philips  v.  Biggs,  Hardress,  164  [which  was  on  the  equity  side  of 


508  BENEFITS   CONFERRED   UNDER   COMPULSION  (Cll.  5 

the  Exchequer],  was  never  decided;  but  tlie  Court  of  Chancery  seemed 
to  consider  the  case  of  two  sheriffs  of  Middlesex,  where  one  had  paid 
the  damages  in  an  action  for  an  escape,  and  sued  the  other  for  con- 
tribution, as  like  the  case  of  two  joint  obligors.  From  the  inclination 
of  the  court  in  this  last  case,  and  from  the  concluding  part  of  Lord 
Kenyon's  judgment  in  Merry weatlier  v.  Nixan,  and  from  reason,  jus- 
tice and  sound  policy,  the  rule  that  wrongdoers  cannot  have  redress  or 
contribution  against  each  other  is  confined  to  cases  where  the  person 
seeking  redress  must  be  presumed  to  have  known  he  was  doing  an  un- 
lawful act." 

In  Betts  V.  Gibbins,  2  Ad.  &  E.  57,  Lord  Denman  said :  "The  case 
of  Merryweather  v.  Nixan,  8  T.  R.  186,  seems  to  me  to  have  been 
strained  beyond  what  the  decision  will  bear — the  present  case  is  an 
exception  to  the  general  rule.  The  general  rule  is,  that  between  wrong- 
doers there  is  neither  indemnity  nor  contribution.  The  exception  is 
where  the  act  is  not  clearly  illegal  in  itself,  and  Merryweather  v. 
Nixan,  8  T.  R.  186,  was  only  a  refusal  of  a  rule  nisi.  ♦  *  *  jj^ 
Adamson  v.  Jarvis,  4  Bing.  66,  we  have  the  observations  of  a  learned 
person  familiar  with  commercial  law." 

A  promise  to  indemnify  against  an  act  not  known  to  the  promisee 
at  the  time  to  be  unlawful  is  valid.  Coventry  v.  Barton,  17  Johns. 
(N.  Y.)  142,  8  Am.  Dec.  376;  Stone  v.  Hooker,  9  Cow.  (N.  Y.) 
154. 

In  Pearson  v.  Skelton,  1  Mee.  &  Wels.  504,  where  one  stagecoach 
proprietor  had  been  sued  for  the  negligence  of  a  driver,  and  damages 
had  been  recovered  against  him,  which  he  had  paid,  and  he  sought 
contribution  from  another  of  the  proprietors,  it  was  held  that  the  rule 
there,  no  contribution  between  joint  tort-feasors,  does  not  apply  to  a 
case  where  the  party  seeking  contribution  was  a  tort-feasor  only  by 
inference  of  law,  but  is  confined  to  cases  where  it  must  be  presumed 
that  the  party  knew  he  was  committing  an  unlawful  act. 

The  same  doctrine  was  maintained  in  Wooley  v.  Batte,  2  C.  &  P. 
417. 

These  cases  have  been  followed  in  this  court  in  Horbach's  Admin- 
istrators v.  Elder,  18  Pa.  (6  Harris)  33.  "Here,"  said  Judge  Coulter, 
"the  plaintiff  and  defendant  are  in  sequali  jure.  The  plaintiff  has 
exclusively  borne  the  burden  which  ought  to  have  been  shared  by  the 
defendant,  who  therefore  ought  to  contribute  his  share." 

"Contribution,"  says  Lord  Chief  Baron  Eyre,  in  Bering  v.  Earl  of 
"Winchelsea,  1  Cox,  318,  "is  bottomed  and  fixed  on  general  principles 
of  natural  justice,  and  does  not  spring  from  contract." 

These  principles  rule  the  case  before  us.  The  parties  plaintiff  and  de- 
fendant are  two  municipal  corporations,  jointly  bound  to  keep  this 
bridge  in  repair.  These  bodies  can  act  only  by  their  legally  constituted 
agents,  their  commissioners,  who  examine  the  structure  and  order  re- 
pair which  is  done.    They  erred  in  judgment,  and  both  were  liable  for 


Sec.  1)  DISCHARGE   OF   DEFENDANT'S   OBLIGATION  509 

the  consequences  of  that  error,  and  one  having  paid  the  whole  of  the 
damages  is  entitled  to  contribution  from  the  other. 
Judgment  reversed,  and  venire  de  novo  awarded.^* 


UNION  STOCKYARDS  CO.  v.  CHICAGO,  B.  &  Q.  R.  CO. 

(Supreme  Court  of  the  United  States,  1904.     196  U.  S.  217,  25  Sup.  Ct  226, 
49  L.  Ed.  453,  2  Ann.  Cas.  '525.) 

On  a  certificate  from  the  United  States  Circuit  Court  of  Appeals 
for  the  Eighth  Circuit. 

The  defendant  railroad  company  delivered  a  refrigerator  car  with 
imperfect  brakes  to  the  plaintiff  terminal  company.  Both  companies 
failed  to  discover  the  defect,  which  could  have  been  discovered  by 
proper  inspection.  One  Goodwin  an  employee  of  the  terminal  com- 
pany, who  was  injured  as  a  direct  result  of  the  defective  brakes,  sued 
the  terminal  company  alone  and  recovered  judgment.  The  present  ac- 
tion is  brought  by  the  terminal  company  against  the  railroad  company 
to  recover  the  amount  paid  under  the  judgment.  The  circuit  court  sus- 
tained a  demurrer  to  the  plaintiff's  petition,  and  the  plaintiff  brought 
error  to  the  Circuit  Court  of  Appeals  for  the  Eighth  Circuit.  The 
latter  court  upon  certificate  now  propounds  the  following  question : 

"Is  a  railroad  company  which  delivers  a  car  in  bad  order  to  a  ter- 
minal company,  that  is  under  contract  to  deliver  it  to  its  ultimate 
destination  on  its  premises  for  a  fixed  compensation,  to  be  paid  to  it  by 
the  railroad  company,  liable  to  the  terminal  company  for  the  damages 
which  the  latter  has  been  compelled  to  pay  to  one  of  its  employees  on 
account  of  injuries  he  sustained  while  in  the  customary  discharge  of 
his  duty  of  operating  the  car,  by  reason  of  the  defect  in  it,  in  a  case  in 
which  the  defect  is  discoverable  upon  reasonable  inspection?" 

Mr.  Justice  Day  ^^  dehvered  the  opinion  of  the  court: 

We  take  it  that  this  inquiry  must  be  read  in  the  light  of  the  state- 
ment accompanying  it.  While  instruction  is  asked  broadly  as  to  the 
liability  of  the  railroad  company  to  the  terminal  company,  for  dam- 
ages which  the  latter  has  been  compelled  to  pay  to  one  of  its  own 
employees  on  account  of  injuries  sustained,  it  is  doubtless  meant  to 
limit  the  inquiry  to  cases  wherein  such  recovery  was  had  because  of 
the  established  negligence  of  the  terminal  company  in  the  performance 
of  the  specific  duty  stated,  and  which  it  owed  to  the  employee.  For 
it  must  be  taken  as  settled  that  the  terminal  company  was  guilty  of 
negligence  after  it  received  the  car  in  question,  in  failing  to  perform 

18  Accord:  Nickerson  v.  Wheeler  (1875)  118  Mass.  295;  Ankeny  v,  MoCfett 
(1887)  37  Minn.  109,  33  N.  W.  320 ;  Eaton  &  Prince  Co.  v.  Mississippi  Valley 
Trust  Co.  (190G)  123  Mo.  App.  117,  100  S.  W.  551. 

See,  also.  Palmer  v,  Wick,  [1894]  A.  C.  318. 

19  The  statement  of  facts  is  abridged  and  portions  of  the  opinion  are  omit- 
ted. 


510  -  BENEFITS   CONFERRED   UNDER   COMPULSION  (Ch.  5 

the  duty  of  inspection  required  of  it  as  to  its  own  employee.  The 
case  referred  to  in  the  certificate  (Union  Stock- Yards  Co.  v.  Goodwin, 
57  Neb.  138,  77  N.  W.  357)  is  a  final  adjudication  between  the  ter- 
minal company  and  the  employee,  and  it  therein  appears  that  the  lia- 
bility of  the  company  was  based  upon  the  defective  character  of  the 
brake,  which  defect  a  reasonably  careful  inspection  by  a  competent 
inspector  would  have  revealed,  and  it  was  held  that  in  permitting  the 
employee  to  use  the  car  without  discovering  the  defect  the  company 
was  rendered  liable  to  him  for  the  damages  sustained.  We  have, 
therefore,  a  case  in  which  the  question  of  the  plaintiff's  negligence  has 
been  established  by  a  competent  tribunal,  and  the  inquiry  here  is,  may 
the  terminal  company  recover  contribution,  or,  more  strictly  speaking 
indemnity,  from  the  railroad  company  because  of  the  damages  which 
it  has  been  compelled  to  pay  under  the  circumstances  stated? 

Nor  is  the  question  to  be  complicated  by  a  decision  of  the  liability 
of  the  railroad  company  to  the  employee  of  the  terminal  company, 
had  the  latter  seen  fit  to  bring  the  action  against  the  railroad  company 
alone,  or  against  both  companies  jointly.  There  seems  to  be  a  diversity 
of  holding  upon  the  subject  of  the  railroad  company's  liability  under 
such  circumstances,  in  courts  of  high  authority.-''     *     *     * 

Coming  to  the  very  question  to  be  determined  here,  the  general 
principle  of  law  is  well  settled  that  one  of  several  wrongdoers  can- 
not recover  against  another  wrongdoer,  although  he  may  have  been 
compelled  to  pay  all  the  damages  for  the  wrong  done.  In  many  in- 
stances, however,  cases  have  been  taken  out  of  this  general  rule,  and 
it  has  been  held  inoperative  in  order  that  the  ultimate  loss  may  be 
visited  upon  the  principal  wrongdoer,  who  is  made  to  respond  for 
all  the  damages,  where  one  less  culpable,  although  legally  liable  to 
third  persons,  may  escape  the  payment  of  damages  assessed  against 
him  by  putting  the  ultimate  loss  upon  the  one  principally  responsible 
for  the  injury  done.  These  cases  have,  perhaps,  their  principal  il- 
lustration in  that  class  wherein  municipalities  have  been  held  responsi- 
ble for  injuries  to  persons  lawfully  using  the  streets  in  a  city,  because 
of  defects  in  the  streets  or  sidewalks  caused  by  the  negligence  or 
active  fault  of  a  property  owner.  In  such  cases,  where  the  munici- 
pality has  been  called  upon  to  respond  because  of  its  legal  duty  to  keep 
public  highways  open  and  free  from  nuisances,  a  recovery  over  has 
been  permitted  for  indemnity  against  the  property  owner,  the  princi- 
pal wrongdoer,  whose  negligence  was  the  real  cause  of  the  injury.^^ 

20  The  court  here  briefly  discussed  Moon  v.  Northern  Pacific  Railroad  Com- 
pany (1S91)  46  Minn.  106,  48  N.  W.  679,  24  Am.  St.  Rep.  194,  and  Pennsylvania 
Railroad  Company  v.  Snyder  (1896)  55  Ohio  St.  342,  45  N.  E.  559,  60  Am.  St 
Rep.  700,  imposing  liability  on  the  railroad  company  on  the  facts  of  the  prin- 
cipal case,  and  Glvnn  v.  Central  R.  R.  Co.  (1900)  175  Mass.  510.  56  N.  E.  698, 
78  Am.  St.  Rep.  507,  and  M.,  K.  &  T.  R.  R.  Co.  v.  Merrill  (1902)  65  Kan.  436, 
70  Pac.  358,  59  L.  R.  A.  711,  93  Am.  St.  Rep.  287  contra. 

21  In  addition  to  the  authorities  on  this  point  noted  in  the  principal  case, 
see  in  accord  Baltimore  &  Ohio  Railroad  Co.  v.  County   Commissioners  of 


Sec.  1)  DISCHARGE   OF   DEFENDANT'S  OBLIGATION  511 

Of  this  class  of  cases  is  Washington  Gaslight  Co.  v.  District  of 
Columbia,  161  U.  S.  316,  40  L.  Ed.  712,  16  Sup.  Ct.  564,  in  which  a  res- 
ident of  the  city  of  Washington  had  been  injured  by  an  open  gas  box, 
placed  and  maintained  on  the  sidewalk  by  the  gas  company,  for  its 
benefit.  The  District  was  sued  for  damages,  and,  after  notice  to  the 
gas  company  to  appear  and  defend,  damages  were  awarded  against 
the  District,  and  it  was  held  that  there  might  be  a  recovery  by  the 
District  against  the  gas  company  for  the  amount  of  damages  which 
the  former  had  been  compelled  to  pay.  Many  of  the  cases  were  re- 
viewed in  the  opinion  of  the  court,  and  the  general  principle  was  rec- 
ognized that,  notwithstanding  the  negligence  of  one,  for  which  he  has 
been  held  to  respond,  he  may  recover  against  the  principal  delinquent 
where  the  offense  did  not  involve  moral  turpitude,  in  which  case  there 
could  be  no  recovery,  but  was  merely  malum  prohibitum,  and  the  law 
would  inquire  into  the  real  delinquency  of  the  parties,  and  place  the 
ultimate  liability  upon  him  whose  fault  had  been  the  primary  cause 
of  the  injury. 

The  same  principle  has  been  recognized  in  the  court  of  appeals  of 
the  state  of  New  York  in  Oceanic  Steam  Nav.  Co.  v.  Compania  Trans- 
atlantica  Espanola,  134  N.  Y.  461,  30  Am.  St.  Rep.  685,  31  N.  E.  897, 
the  second  proposition  of  the  syllabus  of  the  case  being:  "Where, 
therefore,  a  person  has  been  compelled,  by  the  judgment  of  a  court 
having  jurisdiction,  to  pay  damages  caused  by  the  negligence  of 
another,  which  ought  to  have  been  paid  by  the  wrongdoer,  he  may 
recover  of  the  latter  the  amount  so  paid,  unless  he  was  a  party  to 
the  wrong  which  caused  the  damage." 

In  a  case  cited  and  much  relied  upon  at  the  bar  (Gray  v.  Boston 
Gaslight  Co.,  114  Mass.  149,  19  Am.  Rep.  324),  a  telegraph  wire  was 
fastened  to  the  plaintiff's  chimney  without  his  consent,  and,  the 
weight  of  the  wire  having  pulled  the  chimney  over  into  the  street,  to 
the  injury  of  a  passing  traveler,  an  action  was  brought  against  the  prop>- 
erty  owner  for  damages,  and  notice  was  duly  given  to  the  gas  com- 
pany, which  refused  to  defend.  Having  settled  the  damages  at  a  figure 
which  the  court  thought  reasonable,  the  property  owner  brought  suit 
against  the  gas  company,  and  it  was  held  liable.  In  the  opinion  the 
court  said :  "When  two  parties,  acting  together,  commit  an  illegal  or 
wrongful  act,  the  party  who  is  held  responsible  for  the  act  cannot 
have  indemnity  or  contribution  from  the  other,  because  both  are  equally 
culpable  or  participes  criminis,  and  the  damage  results  from  their 
joint  offense.    This  rule  does  not  apply  when  one  does  the  act  or  creates 

Howard  County  (1910)  113  Md.  404,  77  Atl.  930;  Phoenix  Bridge  Co.  v.  Creem 
(1905)  102  App.  Div.  354,  92  N.  Y.  Supp.  S55  (contractor  entitled  to  indemnity 
from  subcontractor  for  negligent  injury  to  a  traveler);  City  of  Grand  Forks 
V.  Paulsness  (1909)  19  N.  D.  293,  123  N.  W.  878,  40  L.  R.  A.  (N.  S.)  1158. 

Contra :  City  of  I^misville  v.  Louisville  Ky.  Co.  (1913)  156  Ky.  141,  160  S. 
W.  771,  49  L.  R.  A.  (N.  H.)  350. 

See,  also,  Nashua  Iron  &  Steel  Co.  v.  Worcester,  &  N.  R.  Co.  (1SS2)  62  N.  H. 
159 ;   Austin  Electric  Railway  Co.  v.  Faust  (Tex.  Civ,  App.  1911)  133  S.  W.  440. 


512  BENEFITS  CONFERRED   UNDER  COMPULSION  (Ch.  5 

the  nuisance,  and  the  other  does  not  join  therein,  but  is  thereby  ex- 
posed to  liability  and  suffers  damage.  He  may  recover  from  the 
party  whose  wrongful  act  has  thus  exposed  him.  In  such  cases  the 
parties  are  not  in  pari  delicto  as  to  each  other,  though,  as  to  third 
persons,  either  may  be  held  liable."     *     *     * 

Other  cases  might  be  cited  which  are  applications  of  the  excep- 
tion engrafted  upon  the  general  rule  of  noncontribution  among  wrong- 
doers, holding  that  the  law  will  inquire  into  the  facts  of  a  case 
of  the  character  shown,  with  a  view  to  fastening  the  ultimate  lia- 
bility upon  the  one  whose  wrong  has  been  primarily  responsible  for 
the  injury  sustained.  In  the  present  case  there  is  nothing  in  the  facts 
as  stated  to  show  that  any  negligence  or  misconduct  of  the  railroad 
company  caused  the  defect  in  the  car  which  resulted  in  the  injury 
to  the  brakeman.  That  company  received  the  car  from  its  owner,  the 
Hammond  Packing  Company,  whether  in  good  order  or  not  the  rec- 
ord does  not  disclose.  It  is  true  that  a  railroad  company  owes  a  duty 
of  inspection  to  its  employees  as  to  cars  received  from  other  compa- 
nies as  well  as  to  those  which  it  may  own.  Baltimore  &  P.  R.  Co. 
v.  Mackey,  157  U.  S.  72,  39  L.  Ed.  624,  15  Sup.  Ct.  491.  But  in  the 
present  case  the  omission  of  duty  for  which  the  railroad  company 
was  sought  to  be  held  was  the  failure  to  inspect  the  car  with  such 
reasonable  diligence  as  would  have  discovered  the  defect  in  it.  It 
may  be  conceded  that,  the  railroad  company  having  a  contract  with  the 
terminal  company  to  receive  and  transport  the  cars  furnished,  it  was 
bound  to  use  reasonable  diligence  to  see  that  the  cars  were  turned 
over  in  good  order,  and  a  discharge  of  this  duty  required  an  inspec- 
tion of  the  cars  by  the  railroad  company  upon  delivery  to  the  terminal 
company.  But  that  the  terminal  company  owed  a  similar  duty  to  its 
employees,  and  neglected  to  perform  the  same,  to  the  injury  of  an  em- 
ployee has  been  established  by  the  decision  of  the  supreme  court  of 
Nebraska,  already  referred  to. 

The  case  then  stands  in  this  wise:  The  railroad  company  and  the 
terminal  company  have  been  guilty  of  a  like  neglect  of  duty  in  failing 
to  properly  inspect  the  car  before  putting  it  in  use  by  those  who 
might  be  injured  thereby.  We  do  not  perceive  that,  because  the  duty 
of  inspection  was  first  required  from  the  railroad  company,  the  case  is 
thereby  brought  within  the  class  which  holds  the  one  primarily  re- 
sponsible, as  the  real  cause  of  the  injury,  liable  to  another  less  culpable, 
who  may  have  been  held  to  respond  for  damages  for  the  injury  in- 
flicted. It  is  not  like  the  case  of  the  one  who  creates  a  nuisance  in 
the  public  streets;  or  who  furnishes  a  defective  dock;  or  the  case  of 
the  gas  company,  where  it  created  the  condition  of  unsafety  by  its 
own  wrongful  act;  or  the  case  of  the  defective  boiler,  which  blew 
out  because  it  would  not  stand  tlie  pressure  warranted  by  the  manufac- 
turer. In  all  these  cases  the  wrongful  act  of  the  one  held  finally  liable 
created  the  unsafe  or  dangerous  condition  from  which  the  injury 
resulted.     The  principal  and  moving  cause,  resulting  in  the  injury 


Sec.  1)  DISCHARGE   OF   DEFENDANT'S   OBLIGATION  513 

sustained,  was  the  act  of  the  first  wrongdoer,  and  the  other  has  been 
held  hable  to  third  persons  for  faiHng  to  discover  or  correct  the  de- 
fect caused  by  the  positive  act  of  the  other. 

In  the  present  case  the  neghgence  of  the  parties  has  been  of  the 
same  character.  Both  the  railroad  company  and  the  terminal  com- 
pany failed,  by  proper  inspection,  to  discover  the  defective  brake.  The 
terminal  company,  because  of  its  fault,  has  been  held  liable  to  one 
sustaining  an  injury  thereby.  We  do  not  think  the  case  comes  within 
that  exceptional  class  which  permits  one  wrongdoer  who  has  been 
mulcted  in  damages  to  recover  indemnity  or  contribution  from  an- 
other. 

For  the  reasons  stated,  the  question  propounded  will  be  answered 
in  the  negative." 


HOGGAN  v.  CAHOON. 
(Supreme  Court  of  Utah,  1903.    26  Utah,  444,  73  Pac.  512,  99  Am.  St.  Rep.  837.) 

Appeal  from  District  Court,  Sanpete  County;  Jacob  Johnson, 
Judge. 

Action  by  James  W.  Hoggan  against  James  C.  Cahoon,  Sr.  From 
a  judgment  in  favor  of  defendant,  plaintiff  appeals. 

Bartch,  J. 2^  This  action  was  commenced  in  the  district  court 
of  Sanpete  county  on  November  9,  1901,  to  recover  from  the  defend- 
ant the  sum  of  $290.35  and  interest,  alleged  to  be  due  on  an  implied 
contract  of  indemnity.  *  *  *  To  the  complaint  the  defendant  in- 
terposed a  demurrer,  as  follows ;  *  *  *  "(2)  That  said  complaint 
does  not  state  facts  sufficient  to  constitute  a  cause  of  action."  Upon 
the  hearing  of  tlie  demurrer,  the  court  decided  against  the  plaintiff 
upon  both  grounds,  and  dismissed  the  action. 

We  will,  in  the  first  instance,  consider  the  question  whether  the  com- 
plaint states  a  cause  of  action.  The  appellant  insists  that  facts  sufficient 
are  stated  to  constitute  a  case  for  indemnity,  within  the  exceptions  to 
the  rule  refusing  indemnity  between  joint  tort  feasors.  For  the  purpose 
of  this  decision,  the  judgment  appealed  from  having  been  rendered 
upon  demurrer,  the  facts  alleged  in  the  complaint  must  be  assumed  to 
be  true.  Therefrom  it  appears  that  the  defendant  appointed  the  plain- 
tiff as  his  agent  for  the  purpose  of  transacting  certain  specific  busi- 
ness, which  was  to  take  into  possession  certain  goods  and  chattels,  and 

22  Accord:  Spalding  v.  Oakes  (1SG9)  42  Vt.  343;  City  of  Tacoraa  v.  Bonnell 
(1911)  65  Wasli.  505,  118  Pac.  642,  36  L.  R.  A.  (N.  S.)  582;  Central  of  Geor,?ia 
Railway  Co.  v.  Macon  Railway  &  Lis,'lit  Co.  (1911)  9  Ga.  App.  628,  71  S.  E. 
1076;  Consolidated  Kansas  Citv  Smelting  &  Refining  Co.  v.  P.inkley  (1907)  45 
Tex.  Civ.  App.  100,  99  S.  W.  181. 

See  12  Harvard  Law  Review,  176;  15  Columbia  Law  Review,  717;  1  \'t- 
ginia  Law  Review,  313. 

23  Portions  of  tbe  opinion  are  omitted. 

Thubs.Quasi  Cont. — 33 


514  BENEFITS   CONFERRED   UNDER   COMPULSION  (Ch.  5 

transport  them  to  a  particular  place  named.  The  agent  proceeded 
to,  and  did,  transact  the  business  of  the  agency  at  the  special  instance 
and  under  the  direction  of  his  principal ;  and,  although  the  goods 
and  chattels  were  covered  by  a  mortgage  held  by  the  principal,  the 
agent  was  not  aware  that  the  taking  and  carrying  away  of  them  as 
directed  by  the  principal  constituted  a  tort.  He,  as  appears,  acted  in 
good  faith,  and  upon  the  faith  of  the  representations  and  assurances 
of  the  principal  that  such  taking  was  lawful  and  proper.  Thereafter 
a  third  person  brought  suit  against  the  agent  for  the  goods  and  chat- 
tels, and  recovered  judgment  against  him  for  a  considerable  sum,  which 
sum  the  agent  was  compelled  to,  and  did  pay,  together  with  the  ex- 
penses incurred  in  the  defense  of  the  suit.  The  principal  was  aware 
of  that  litigation  and  of  the  payment  of  the  resulting  judgment  and 
expenses,  but,  upon  demand  made  by  the  agent  for  reimbursement,  re- 
fused to  comply  with  the  demand.  While  some  of  tlie  allegations 
showing  these  facts  may  be  subject  to  the  criticism  of  being  indefinite 
and  uncertain,  and  might  be  vulnerable  to  a  specific  plea,  we  apprehend 
the  ultimate  facts  are  sufficiently  alleged  to  withstand  a  general  de- 
murrer. If  the  allegations  are  in  fact  true,  the  plaintiff  has  a  right 
of  recovery.  The  facts  stated  are  such  as  to  characterize  the  case  as 
an  exception  to  the  rule  of  law  that  tort  feasors  or  wrongdoers  cannot 
have  redress  against  each  other. 

That  rule  applies  to  cases  where  he  who  seeks  redress  knew  or  must 
be  presumed  to  have  known  that  the  transaction  which  resulted  in  the 
damages  he  was  compelled  to  pay  was  tortious  and  unlawful.  But 
where,  as  appears  from  the  allegations  in  this  case,  an  agent  acts  in 
good  faith  for  his  principal,  under  the  principal's  direction,  and  relies 
upon  his  representations  that  the  transaction  is  lawful,  and  the  same 
is  not  manifestly  unlawful,  the  law  implies  indemnity,  for  damages  of 
third  parties,  to  the  agent  from  the  principal ;  and  if,  as  the  result  of 
acts  so  performed,  the  agent  is  mulcted  in  damages,  the  principal  must 
respond  to  the  agent  for  the  same,  as  well  as  for  the  necessary  ex- 
penses incurred  in  resisting  the  claims  of  third  parties  who  were  in- 
jured by  the  transaction.  "The  agent  has  the  right  to  assume  that  the 
principal  will  not  call  upon  him  to  perform  any  duty  which  would 
render  him  liable  in  damages  to  third  persons.  Having  no  personal 
interest  in  the  act,  other  than  the  performance  of  his  duty,  the  agent 
should  not  be  required  to  suffer  loss  from  the  doing  of  an  act  appar- 
ently lawful  in  itself,  and  which  he  has  undertaken  to  do  by  the  direc- 
tion and  for  the  benefit  and  advantage  of  his  principal.  If  in  the 
performance  of  such  an  act,  therefore,  the  agent  invades  the  rights  of 
third  persons,  and  incurs  liability  to  them,  the  loss  should  fall  rather 
upon  him  for  whose  benefit  and  by  whose  direction  it  was  done,  than 
upon  him  whose  only  intention  was  to  do  his  duty  to  his  principal. 
Wherever,  then,  the  agent  is  called  upon  by  his  principal  to  do  an 
act  which  is  not  manifestly  illegal,  and  which  he  does  not  know  to  be 
wrong,  the  law  implies  a  promise  on  the  part  of  the  principal  to  in- 


Sec.  1)  DISCHARGE   OF   DEFENDANT'S  OBLIGATION  515 

deranify  the  agent  for  such  losses  and  damages  as  flow  directly  and 
immediately  from  the  execution  of  the  agency.  Thus  an  agent  is  en- 
titled to  be  indemnified  when  he  is  compelled  to  pay  damages  for  tak- 
ing personal  property  by  direction  of  his  principal,  which,  though  claim- 
ed adversely  by  another,  he  has  reasonable  ground  to  believe  to  be- 
long to  his  principal."     Mechem  on  Agency,  §  653. 

In  Story  on  Agency,  §  339,  the  author  says :  "  It  may  be  stated,  as  a 
general  principal  of  law,  that  an  agent  who  commits  a  trespass  or  other 
wrong  to  tlie  property  of  a  third  person  by  the  direction  of  his  prin- 
cipal, if  at  tlie  time  he  has  no  knowledge  or. suspicion  that  it  is  such 
a  trespass  or  wrong,  but  acts  bona  fide,  will  be  entitled  to  a  reimburse- 
ment and  contribution  from  his  principal  for  all  the  damages  which 
he  sustains  thereby.  For,  although  the  general  doctrine  of  the  com- 
mon law  is  that  there  can  be  no  reimbursement  or  contribution  among 
wrongdoers,  whether  they  are  principals  or  are  agents,  yet  tliat  doc- 
trine is  to  be  received  with  the  qualification  tliat  the  parties  know  at 
the  time  that  it  is  a  wrong.  And  in  all  these  cases  there  is  no  differ- 
ence whether  there  be  a  promise  of  indemnity  or  not,  for  the  law  will 
not  enforce  a  contract  of  indemnity  against  a  known  and  meditated 
wrong;  and,  on  the  other  hand,  where  the  agent  acts  innocently  and 
without  notice  of  the  wrong,  the  law  will  imply  a  promise  on  the^part 
of  the  principal  to  indemnify  him.  The  same  doctrine  applies  to  all 
other  cases  of  losses  or  damages  sustained  by  an  agent  in  the  course 
of  tlie  business  of  his  agency,  if  they  are  incurred  without  any  negli- 
gence or  default  on  his  own  part." 

In  Jacobs  v.  Pollard,  10  Cush.  (Mass.)  287,  57  Am.  Dec.  105,  Mr. 
Justice  Bigelow  said :  "It  is  undoubtedly  the  policy  of  the  law  to  dis- 
countenance all  actions  in  which  a  party  seeks  to  enforce  a  demand 
originating  in  a  willful  breach  or  violation  on  his  part  of  the  legal 
rights  of  others.  Courts  of  law  will  not  lend  their  aid  to  those  who 
found  their  claims  upon  an  illegal  transaction.  No  one  can  be  per- 
mitted to  relieve  himself  from  the  consequences  of  having  intentionally 
committed  an  unlawful  act  by  seeking  an  indemnity  or  contribution 
from  those  with  whom  or  by  whose  authority  such  unlawful  act  was 
committed.  But  justice  and  sound  policy,  upon  which  this  salutary 
rule  is  founded,  alike  require  that  it  should  not  be  extended  to  cases 
where  parties  have  acted  in  good  faith,  without  any  unlawful  design, 
or  for  the  purpose  of  asserting  a  right  in  themselves  or  others,  although 
they  may  have  thereby  infringed  upon  tlie  legal  rights  of  third  per- 
sons. It  is  only  where  a  person  knows,  or  must  be  presumed  to  know, 
that  his  act  was  unlawful,  that  the  law  will  refuse  to  aid  him  in  seek- 
ing an  indemnity  or  contribution." 

So,  in  Moore  v.  Appleton,  26  Ala.  633,  Mr,  Justice  Rice,  speaking 
for  the  court,  said :  "We  admit  tlie  rule  that  the  law  will  not  enforce 
contribution  nor  indemnity  between  wrongdoers.  But  that  rule  does 
not  apply  to  any  case  where  the  act  of  the  agent  was  not  manifestly 
illegal  in  itself,  and  was  done  bona  fide  in  the  execution  of  his  agency. 


516  BENEFITS   CONFERRED   UNDER   COMPULSION  (Ch.  5 

and  without  knowledge  (either  actual  or  implied  by  law)  that  it  was 
illegal."  Story  on  Agency,  §  340;  Cooley  on  Torts,  145-149;  Culmer 
V.  Wilson,  13  Utah,  129,  44  Pac.  833,  57  Am.  St.  Rep.  713 ;  Nelson 
V.  Cook,  17  111.  443;  Gower  v.  Emery,  18  Me.  79;  Avery  v.  Halsey, 
14  Pick.  (Mass.)  174;  Coventry  v.  Barton,  17  Johns.  (N.  Y.)  142,  8 
Am.  Dec.  376;   Moore  v.  Appleton,  34  Ala.  147,  73  Am.  Dec.  448. 

From  the  foregoing  considerations,  we  are  of  the  opinion  that  the 
complaint  is  not  subject  to  demurrer  on  the  ground  that  it  stated  no 
cause  of  action.     *     *     * 

We  are  of  the  opinion  that  the  court  erred  in  sustaining  the  demur- 
rer. The  judgment  must  be  reversed,  with  costs  and  the  cause  re- 
manded, with  directions  to  the  court  below  to  reinstate  the  case,  over- 
rule the  demurrer,  and  proceed  according  to  law.    It  is  so  ordered.'* 


SECTION  2.— DURESS 


ASTLEY  v.  REYNOLDS. 

(Court  of  King's  Bench,  1731.    2  Strange,  915.) 

In  an  action  for  money  had  and  received  to  the  plaintiff's  use,  the 
case  reserved  for  the  consideration  of  the  Court  was,  that  above 
three  years  ago,  the  plaintiff  pawned  plate  to  the  defendant  for  £20. 
and  at  the  three  years  end  came  to  redeem  it,  and  tlie  defendant  in- 
sisted to  have  ilO.  for  the  interest  of  it,  and  the  plaintiff  tendered  him 
£4.  knowing  £4.  to  be  more  than  legal  interest.  That  the  defendant  re- 
fusing to  take  it,  they  parted ;  and  at  some  months  distance,  the  plain- 
tiff came  and  made  a  second  tender  of  the  £4.  but  the  defendant  still 
insisting  upon  £10.  the  plaintiff  paid  it  and  had  his  goods:  and  now 
brings  this  action  for  the. surplus  beyond  legal  interest. 

It  was  argued  for  the  defendant,  that  there  was  no  colour  to  say  the 
plaintiff  paid  it  either  by  mistake  or  force,  it  being  stated  that  he 
knew  the  £4.  he  tendered  was  beyond  the  legal  interest;  and  he  did 
it  with  his  eyes  open,  having  another  remedy  for  his  goods  by  trover 
after  tender  of  the  legal  interest;  and  it  falls  within  the  rule  volenti 
non  fit  injuria. 

Et  Per  Curiam,  the  cases  of  payments  by  mistake  or  deceit,  are  not 
to  be  disputed;  but  this  case  is  neither,  for  the  plaintiff  knew  what 
he  did,  in  that  lies  the  strength  of  the  objection:  but  we  do  not  think 
the  tender  of  the  £4.  will  hurt  him,  for  a  man  may  tender  too  much, 
though  a  tender  of  too  little  is  bad ;  and  where  a  man  does  not  know 
exactly  what  is  due,  he  must  at  his  peril  take  care  to  tender  enough. 

24  Accord :   Adamson  v.  Jarvis  (1827)  4  Bing.  66. 


Sec.  2)  DURESS  517 

We  think  also,  that  this  is  a  payment  by  compulsion;  the  plaintiff 
might  have  such  an  immediate  want  of  his  goods,  that  an  action  of 
trover  would  not  do  his  business :  where  the  rule  volenti  non  fit  injuria 
is  applied,  it  must  be  where  the  party  had  his  freedom  of  exercising 
his  will,  which  this  man  had  not :  we  must  take  it  he  paid  the  money 
relying  on  his  legal  remedy  to  get  it  back  again. 

The  plaintiff  had  judgment;    and  the  defendant  dying  pending  the 
argument,  judgment  was  ordered  to  be  entered  nunc  pro  tunc.^° 


IRVING  V.  WILSON. 

(Court  of  King's  Bench,  1791.     4  Term  R.  4S5.) 

This  was  an  action  on  the  case,  to  recover  the  sum  of  £2.  lis.  as 
money  had  and  received  by  the  defendants  to  the  plaintiff's  use.  At 
the  trial  at  the  last  Carlisle  Assizes  before  Thomson,  Baron,  it  ap- 
peared, that  the  defendants,  who  are  Custom-House  omcers,  had  seized 
some  hams  near  Carlisle,  which  the  plaintiff  was  sending  in  three 
several  carts  from  Scoiland  to  Carlisle.  The  plaintiff  obtained  one 
permit  for  the  whole;  but  owing  to  some  accident,  two  of  the  carts 
were  at  the  distance  of  two  miles  behind  the  other  when  the  defend- 
ants met  the  first  and  demanded  the  permit ;  the  driver  informed  them 
that  the  permit  was  with  the  other  carts  which  came  up  in  an  hour 
and  a  half  afterwards,  before  the  first  reached  Carlisle,  but  not  till 
the  ofiicer,  after  waiting  some  time  without  seeing  the  other  carts,  had 
made  the  seizure.  They  were  all  three  driven  to  the  Custom-House 
at  Carlisle,  the  defendants  saying  they  could  not  release  them  unless 
the  collector  were  applied  to.  When  the  whole  was  explained  to  the 
collector,  he  said  he  would  have  no  concern  in  the  taking;  and  the 
defendants  then  refused  to  give  up  the  carts  with  the  cargoes,  unless 
the  plaintiff  could  give  them  £2.  lis.;  which  he  accordingly  did.  It 
was  objected  on  the  part  of  the  defendants  that  the  plaintiff,  by  this 
transaction  with  Revenue  officers,  had  incurred  a  penalty  of  £50.  and 
that  he  could  not  recover  back  the  money  which  he  had  paid  to  have 

26  In  Lowenstein  v.  Bache  (1910)  41  Pa.  Super.  Ct.  552,  the  defendant, 
a  stockbroker,  agreed  to  make  advances  to  the  plaintiff,  a  customer,  at 
five  per  cent,  interest  to  enable  such  customer  to  buy  stocks  through  the 
broker,  the  broker  to  hold  the  stocks  purchased  as  security  for  the  loans.  The 
broker  charged  more  than  five  per  cent,  interest,  and  when  the  customer  closed 
his  account  the  broker  refused  to  give  up  the  securities  unless  tlie  amount  of 
the  disputed  interest  was  paid.  The  customer  thereur>on  paid  the  broker 
this  amount  under  protest  and  with  notice  that  he  intended  to  bring  an  ac- 
tion to  recover  it  back.  Held  that  assumpsit  would  lie  to  recover  the  money 
thus  paid,  the  court  saying:  "When  a  party  is  compelled  by  duress  of  his  per- 
son, deeds,  papers,  or  personal  property  and  the  evidence  of  title  thereto,  to 
pay  money  illegally  demanded,  from  which  the  party  making  the  pajment  has 
no  other  means  of  immediate  and  adequate  relief,  It  is  not  voluntary  but  com- 
pulsory ;  and  he  may  rescue  himself  from  such  duress  by  payment  of  the  mon- 
ey under  protest,  and  afterwards,  on  proof  of  the  fact,  recover  it  back." 


518  BENEFITS  CONFERRED  UNDER  COMPULSION         (Ch.  5 

the  goods  which  had  been  seized  returned  to  him ;  and  the  plaintiff 
was  non-suited,  with  leave  to  move  to  set  that  non-suit  aside,  and  to 
enter  up  a  verdict  for  him,  if  this  Court  should  be  of  opinion  that  the 
plaintiff  could  maintain  this  action. 

A  rule  having  been  obtained  on  a  former  day  by  Law  to  shew  cause 
why  the  nonsuit  should  not  be  set  aside. 

Lord  Kenyon,  C.  J.  The  Revenue  laws  ought  not  to  be  made  the 
means  of  oppressing  the  subject.  Here,  a  permit  having  been  granted 
for  the  whole  quantity  of  goods,  and  which  was  with  the  other  carts 
behind  at  the  time  of  the  seizure,  the  seizure  was  clearly  illegal.  The 
permit- for  the  entire  quantity,  could  not  be  separated  and  distributed 
to  each  of  the  carts.  And  therefore  whatever  ground  of  probability 
there- was  for  stopping  the  first  cart,  yet  after  the  matter  was  cleared 
up,  there  was  no  pretence  for  making  a  seizure ;  and  it  was  highly 
improper  in  the  officers  to  take  the  money.  If  goods  liable  to  a  for- 
feiture be  forfeited,  the  officer  is  to  seize  them  for  the  King;  but  he 
is  not  to  be  permitted  to  abuse  the  duties  of  his  station,  and  to  make 
it  a  mode  of  extortion.  Here  the  defendants  took  the  money  under 
circumstances  which  could  by  no  possibility  justify  them,  and  there- 
fore this  could  not  be  called  a  voluntary  payment ;  but  it  was  extorted 
from  the  plaintiff,  and  in  that  case  no  notice  to  the  defendants  was 
necessary. 

AsHHURST,  J.  I  agree  that  if  this  money  had  been  paid  as  a  bribe, 
both  parties  would  have  been  in  pari  delicto,  and  the  plaintiff  would 
not  be  entitled  to  recover :  but  here  the  plaintiff  was  in  no  fault  what- 
ever :  this  money  was  not  paid  as  a  bribe ;  for  the  goods  were  not 
liable  to  seizure.  Neither  was  it  a  voluntary  payment ;  for  when  the 
defendants  had  stopped  the  goods,  the  plaintiff  was  in  their  power. 
The  defendants  acted  right  in  stopping  the  goods  at  first;  but  when 
the  permit  came  up,  there  was  no  pretence  to  detain  them, — still  less 
to  take  the  money.  It  was  a  payment  by  coercion ;  and  which  the 
plaintiff  may  recover  from  the  defendants  as  money  unconscientiously 
received  by  them. 

Rule  absolute. 


CHASE  V.  DWINAL. 
(Supreme  Court  of  Maine,  ISoO.     7  Greenl.  134,  20  Am.  Dec.  352.) 

This  case,  which  was  assumpsit  for  money  had  and  received,  came 
before  the  court  upon  exceptions  taken  by  the  defendant  to  the  opinion 
of  Smith,  J.,  before  whom  it  was  tried  in  the  court  below. 

The  plaintiff'  was  conducting  his  raft  down  the  Penobscot  River ;  and 
when  he  came  near  the  boom  of  the  defendant,  which  was  erected  under 
a  charter  from  the  State,  he  was  unable  to  pass  it  through  the  passage- 
way left  for  that  purpose,  and  by  force  of  the  wind  and  current  it  was 
driven  eastward  of  the  passage,  and  stopped  by  the  defendant's  boom. 
The  plaintiff,  with  other  assistance,  immediately  made  exertions  to  free 


Sec.  2)  DURESS  519 

it  from  the  boom  and  conduct  it  through  the  passage,  which  in  two  or 
three  hours  was  effected.  One  of  the  defendant's  hired  men,  who  as- 
sisted the  plaintiff,  demanded  seventy-five  cents  for  this  service,  which 
the  plaintiff  refused  to  pay.  Afterwards,  the  defendant  demanded  of 
the  plaintiff  $6.40,  being  the  regular  boomage  for  the  raft ;  which  the 
plaintiff  refusing  to  pay,  the  defendant  stopped  and  detained  the  raft 
till  the  plaintiff  paid  the  sum  demanded;  to  recover  which  this  action 
was  brought. 

There  was  evidence  on  both  sides  tending  to  show  the  difficulty  of 
passing  the  boom,  which  extended  nearly  across  the  river ;  and  on  the 
other  hand  the  facility  of  passing  it,  with  proper  care  and  skill. 

The  judge  instructed  the  jury  that  he  considered  it  intended  by  the 
statute  authorizing  the  erection  of  the  boom  that  the  owner  should 
receive  a  compensation  for  drift-timber  stopped  by  it,  as  well  as  for 
the  timber  placed  in  it  for  security  or  convenience.  In  such  cases  the 
owners  of  the  lumber  receive  a  benefit  from  the  boom,  and  ought  to  pay 
the  compensation  fixed  by  law.  On  the  contrary,  if  by  reason  of  the 
navigation  of  the  river  being  obstructed  by  the  boom,  a  raft  is  impelled 
iDy  the  winds  and  current,  into  the- boom,  against  the  will  of  the  owner 
and  conductor ;  who  without  delay,  in  a  reasonable  time,  proceed  to  get 
it  clear  from  the  boom,  as  was  done  by  the  plaintiff;  the  owner  of  the 
raft  was  not  liable  to  pay  the  boomage.  He  further  instructed  them 
that  if  they  should  find,  upon  these  principles,  that  the  defendant  had 
no  right  to  claim  the  boomage,  and  that  the  plaintiff  was  obliged  to 
pay  the  money  in  order  to  procure  the  release  of  his  raft,  he  might  well 
recover  the  money  in  this  action. 

And  the  jury  having  found  for  the  plaintiff,  the  defendant  filed  these 
exceptions  pursuant  to  the  statute. 

Weston,  J.^"  The  defendant  claims,  in  behalf  of  the  Penobscot 
boom  corporation,  a  right  to  receive  and  retain  as  toll,  the  money  at- 
tempted to  be  reclaimed  in  this  action.     *     *     * 

If  the  defendant  was  not  entitled  to  boomage,  it  is,  secondly,  con- 
tended that  the  payment,  being  voluntary,  cannot  be  reclaimed.  Upon 
this  point,  there  is  not  an  entire  harmony  in  the  decided  cases.  It  is 
believed,  however,  that  by  attending  to  certain  distinctions,  which  have 
sometimes  not  been  adverted  to,  they  may  be  in  a  great  measure  recon- 
ciled. 

It  has  been  often  held  that  money  paid  with  a  full  knowledge  of  all 
the  facts,  although  under  a  mistake  of  the  law,  cannot  be  recovered 
back.  Thus  in  cases  of  insurance,  where  there  has  been  no  fraud,  and 
the  party  paying  is  fully  apprized  of  the  facts,  although  under  a  mis- 
apprehension of  his  legal  liability,  he  can  sustain  no  action  for  the 
money  thus  paid.  Lowrie  v.  Bourdieu,  Doug.  471,  per  Duller,  J. ;  Bilbie 
V.  Lumley,  2  East,  469;  Herbert  v.  Champion,  1  Campb.  134.  The 
same  principle  applies,  where  indorsers  of  notes  of  hand  or  bills  of  ex- 

26  A  ijortion  of  the  opinion,  holding  that  under  the  circumstances  of  the 
•case  the  delendant  had  no  legal  right  to  claim  toll  from  plaintiff,  is  omitted. 


520  BENEFITS   CONFERRED   UNDER   COMPULSION  (Cb.  5 

change,  pay  under  a  mistake  of  the  law,  but  with  a  knowledge  of  the 
facts.  In  Brisbane  v.  Dacres,  5  Taunt.  144,  the  captain  of  a  ship  of  war 
had  paid  money  to  his  admiral,  in  conformity  with  a  usage  which  had 
obtained,  but  to  which  he  was  not  by  law  entitled,  but  he  was  not  per- 
mitted to  recover  it  again ;  there  being  nothing  against  conscience  in 
retaining  the  money.  In  that  case,  Chambre,  J.,  who  dissented  from 
his  brethren,  does  not  accede  to  the  principle  that  money,  paid  under  a 
mistake  of  the  law,  cannot  be  recovered.  But  Gibbs,  J.,  says :  "I 
think  that  where  a  man  demands  money  of  another  as  a  matter  of  right, 
and  that  other,  with  a  full  knowledge  of  the  facts  upon  which  the  de- 
mand is  founded,  has  paid  a  sum,  he  can  never  recover  back  the  sum  he 
has  so  voluntarily  paid." 

This  position  is  broad  enough  to  sustain  the  objection  taken  by  the 
defendant.  There  are  other  cases  where,  to  avoid  or  close  a  suit  threat- 
ened or  commenced,  a  party  voluntarily  paying,  whatever  may  be  his 
legal  liability,  must  abide  by  the  adjustment  he  has  made.  Knibbs  v. 
Hall,  1  Esp.  84;  Brown  v.  McKinally,  Id.  279;  Cartwright  v.  Rowley,  2 
Esp.  723.  These  cases  illustrate  and  enforce  the  legal  maxim,  "Volenti 
non  fit  injuria." 

But  this  rule  applies  where  the  party  has  a  freedom  in  the  exercise 
of  his  will,  and  is  under  no  such  duress  or  necessity  as  may  give  his 
payments  the  character  of  having  been  made  upon  compulsion.  It  has 
been  laid  down  as  a  general  principle,  that  an  action  for  money  had  and 
received  lies  for  money  got  through  imposition,  extortion,  or  oppres- 
sion, or  an  undue  advantage  taken  of  the  party's  situation.  Moses 
V.  McFarlane,  2  Burr.  1005 ;  Smith  v.  Bromley,  cited  in  Doug.  696.  In 
Astley  V.  Reynolds,  2  Strange,  916,  an  action  was  sustained  to  recover 
money,  extorted  by  a  pawnbroker  for  the  redemption  of  plate,  notwith- 
standing it  was  objected  that  the  payment  was  voluntary.  In  Hall  v. 
Shultz,  4  Johns.  (N.  Y.)  240,  4  Am.  Dec.  270,  Spencer,  J.,  says  this 
case  has  been  overruled  by  Lord  Kenyon  in  Knibbs  v.  Hall.  There  the 
plaintiff  had  paid,  as  he  insisted,  five  guineas  more  rent  than  could  have 
been  rightfully  claimed  of  him,  to  avoid  a  distress  which  was  threatened. 
Lord  Kenyon  held  this  to  be  a  voluntary  payment,  arid  not  upon  com- 
pulsion, as  the  party  might  have  protected  himself  from  a  wrongful  dis- 
tress by  replevin.  His  lordship  does  not  advert  to  the  case  of  Astley  v. 
Reynolds ;  and  subsequently,  in  Cartwright  v.  Rowley,  before  cited,  he 
refers  with  approbation  to  an  action  within  his  recollection,  for  money 
had  and  received,  brought  against  the  steward  of  a  manor,  to  recover 
money  paid  for  producing  at  a  trial  some  deeds  and  court  rolls,  for 
which  he  had  charged  extravagantly.  It  was  urged  that  the  payment 
was  voluntary ;  but  it  appearing  that  the  party  could  not  do  without  the 
deeds,  and  that  the  money  was  paid  through  the  urgency  of  the  case, 
the  action  was  sustained.  Had  the  distress  threatened  in  Knibbs  v. 
Hall  been  actually  made,  money  paid  to  relieve  the  goods  could  no! 
have  been  recovered  in  assumpsit,  upon  a  principle  which  will  be  subse- 
quently noticed. 


Sec.  2)  DURESS  521 

Hall  V.  Shultz,  cited  by  the  counsel  for  the  defendant,  was  comment- 
ed upon  in  Gilpatrick  v.  Sayward,  5  Greenl.  465.  Neither  of  these  ac- 
tions could  be  sustained  without  a  violation  of  the  statute  of  frauds,  and 
upon  this  ground  they  were  defeated. 

In  Stevenson  v.  Mortimer,  Cowper,  805,  the  plaintiff  recovered  in  an 
action  for  money  had  and  received,  an  excess  of  fees  by  him  paid  to  a 
custom-house  officer,  to  obtain  a  document  he  was  under  the  necessity 
of  procuring. 

In  Ripley  v.  Gelston,  9  Johns.  (N.  Y.)  201,  6  Am.  Dec.  271,  the  plain- 
tiff recovered  in  assumpsit  of  the  collector  of  New  York  money  illegally 
claimed  by  him  as  tonnage  and  light  money,  and  which  the  plaintiff  paid 
to  obtain  a  clearance  of  his  vessel.  In  Clinton  v.  Strong,  9  Johns.  (N. 
Y.)  370,  money  was  reclaimed,  which  had  been  wrongfully  exacted  by 
the  clerk  of  the  district  court  for  the  redelivery  of  property  which  had 
been  seized.  In  the  foregoing  cases,  the  payments  were  not  deemed 
voluntary,  but  extorted  and  compulsory. 

It  may  be  insisted  that  trespass  or  replevin  would  have  been  more  ap- 
propriate remedies  for  the  plaintiff.  Either  might  doubtless  have  been 
maintained ;  and  where  there  are  specific  remedies,  provided  by  law  for 
a  peculiar  class  of  injuries,  assumpsit  cannot  be  substituted.  It  was  up- 
on this  ground  that  Lindon  v.  Hooper,  Cowper,  414,  was  decided.'^ 
Cattle  damage  feasant  had  been  wrongfully  distrained,  money  had  been 
paid  for  their  liberation,  and  an  action  for  money  had  and  received 
brought  to  recover  it.  The  action  did  not  prevail.  The  court  place 
their  opinion  expressly  on  the  nature  of  the  remedy  by  distress,  which 
they  say  is  singular,  and  depends  upon  a  peculiar  system  of  strict  posi- 
tive law;  that  the  distrainor  has  a  certain  course  prescribed  to  him 
which  he  must  take  care  formally  to  pursue ;  and  that  the  law  has  pro- 
vided two  precise  remedies  for  the  owner  of  the  cattle  which  may  hap- 
pen to  be  wrongfully  distrained,  replevin,  and,  after  paying  the  sum 
claimed,  trespass,  in  which  such  payment  must  be  specially  averred  and 
set  forth  as  an  aggravation  of  the  trespass.  Then  are  to  follow  plead- 
ings, which  put  directly  in  issue  the  validity  of  the  distress.  From  a 
case  of  this  peculiar  character,  decided  upon  this  special  ground,  no 
general  principle  can  be  extracted  which  can  govern  cases  where  the 
law  of  distress  does  not  apply. 

Irving  V.  Wilson,  4  D.  &  E.  485,  is  a  case  strongly  resembling  the  one 
now  before  the  court.  A  revenue  officer  had  seized  goods  not  liable  to 
seizure,  but  demanded  money  for  their  release,  which  the  owner  paid. 
This  was  recovered  back  in  an  action  for  money  had  and  received.  It 
was  held  to  be  a  payment  not  voluntary,  but  by  coercion,  the  defendant 
having  the  plaintiff  in  his  power,  by  stopping  his  goods.     It  does  not 

27  In  accord  with  Lindon  v.  Hooper  (1776)  are  Knibbs  v.  Hall  (1794)  1  Esp. 
84,  also  discussed  in  tlie  principal  case,  and  Colell  v.  Pedon  (1834)  3  Watts 
(Pa.)  327.  Contra:  Quinnett  v.  Washington  (1S46)  10  Mo.  53.  See,  also, 
Green  v.  Duckett  (1883)  11  Q.  B.  D.  275. 


522  BENEFITS  CONFERRED  UNDER  COMPULSION         (Cll.  5 

appear  to  have  occurred  to  the  counsel  or  the  court  that  it  was  a  case 
which  was  affected  by  the  decision  in  Lindon  v.  Hooper. 

Trespass  would  have  been  an  appropriate  remedy  for  the  unlawful 
seizure ;  but  after  payment,  assumpsit  was  also  appropriate.  The  mon- 
ey was  extorted.  The  payment  was  not  voluntary  in  any  fair  sense  of 
that  term,  and  the  defendant  had  no  just  title  to  retain  it.  If  money 
is  voluntarily  paid  to  close  a  transaction,  without  duress  either  of  the 
person  or  goods,  the  legal  maxim,  "Volenti  non  fit  injuria,"  may  be  al- 
lowed to  operate.  It  would  be  a  perversion  of  the  maxim  to  apply  it  for 
the  benefit  of  a  party  who  had  added  extortion  to  unjustifiable  force 
and  violence. 

The  party  injured  often  finds  a  convenience  in  being  allowed  to  se- 
lect one  of  several  concurrent  remedies.  In  the  case  under  considera- 
tion, replevin  would  have  restored  the  property  unlawfully  seized.  But 
to  procure  a  writ,  and  an  ofiicer  to  serve  it,  would  have  occasioned  de- 
lay, which  might  have  subjected  the  plaintiff  to  greater  loss  than  the 
payment  of  the  money  demanded.  Besides,  he  must  have  given  a  bond 
to  the  ofiicer  to  prosecute  his  suit;  and  he  might  meet  with  difficulty 
in  obtaining  sufficient  sureties.  Had  he  brought  trespass,  several 
months  might  have  elapsed  before  he  could  have  obtained  a  final  deci- 
sion, and  this  delay  might  have  been  attended  with  serious  incon- 
venience. By  the  course  pursued,  these  difficulties  were  avoided.  Nor 
is  the  defendant  placed  by  it  in  any  worse  situation.  He  has  been  per- 
mitted to  urge  in  his  defence  any  claim  of  right  under  the  corporation ; 
and  he  is  liable  to  pay  only  the  money  actually  received  by  him,  the 
plaintiff  waiving,  by  the  form  of  the  action,  damages  for  the  illegal 
seizure. 

We  perceive  no  objection  in  principle  to  the  form  of  the  action,  nor 
do  we  find  it  unsupported  by  precedent  and  authority.  Exceptions 
overruled.^* 

2  8  In  Fargusson  v.  Winslow  (ISSo)  34  Minn.  384.  25  N.  W.  942,  the  plaintiff 
had  chartered  from  the  defendant  a  steaui  barjjie  for  the  purpose  of  transport- 
ing grain  through  the  Great  T^nkes  from  Duiuth  to  Buffalo.  Upon  arrival  of 
the  ve.ssel  at  its  destination  the  defendant  refused  to  deliver  the  cargo  to 
the  plaintiff  until  the  latter  should  pay  him  $200,  which  sum  defendant  mis- 
takenly, but  in  good  faith,  claimed  as  denmrrage  charges.  liaintilf.  having 
already  contracted  for  the  sale  of  the  grain,  paid  to  the  defendant  under  pro- 
test the  sum  claimed,  Ln  order  to  gain  possession  of  his  property.  The  court 
held  that  the  money  so  paid  could  be  recovered,  saying:  "When  one.  in  order 
to  recover  possession  of  his  pereonal  property  from  another  who  unjustly  de- 
tains it,  is  compelled  to  pay  money  which  is  demanded  as  a  condition  of  deliv- 
ery, such  payment,  when  made  under  protest,  is  deemed  to  have  been  made 
compuLsorily  or  under  duress,  and  may  be  recovered  back, — at  least  when  such 
detention  is  attended  with  circumstances  of  hardship  or  of  serious  inconven- 
ience to  the  owner." 

In  Bates  v.  N.  Y.  I.ife  Insurance  Co.  (1S02)  3  Johns.  Cas.  (N.  Y.)  238,  it  was 
held  that  a  refusal  of  a  corporation  to  transfer  certain  shares  on  its  books 
unless  the  buyer  of  the  shares  paid  a  debt  from  the  seller  to  the  c-orporatiou 
was  such  duress  as  to  entitle  the  buyer  to  recover  the  amount  paid.  But  see 
De  la  Cuesta  v.  Insurance  Co.  (1890)  136  Pa.  62,  82,  658,  20  Atl.  505,  9  L.  R.  A. 
€31. 


Sec.  2)  DURESS  523 

WESTLAKE  &  BUTTON  v.  CITY  OF  ST.  LOUIS. 

(Supreme  Court  of  Missouri,  1882.     77  Mo.  47,  46  Ain.  Rep.  4.) 

This  action  was  brought  by  Westlake  &  Button,  a  corporation,  to 
recover  of  the  city  of  St.  Louis  the  sum  of  $1,756.49,  the  aggregate  of 
overcharges  made  by  the  city,  as  the  plaintiff  alleged,  on  water  licenses 
issued  to  plaintiff.  At  the  trial  the  plaintiff  gave  evidence  tending  to 
show  that  in  September,  1862,  the  license  for  plaintiff's  foundry  was 
fixed  at  $115  per  half  year;  that  prior  to  that  tim.e  it  had  been  $42 ;  that 
the  new  rate  was  illegal  and  excessive;  that  plaintiff  objected  to  it  on 
that  ground ;  that  the  assessor  and  collector  of  water  rates  refused  to 
make  any  reduction  and  threatened  to  turn  off  the  water  from  plaintiff's 
foundry  at  once  if  payment  was  not  made ;  that  payment  was  made  to 
prevent  this  threat  being  carried  into  execution;  that  like  objection  was 
made  by  plaintiff  at  each  renewal  of  the  license  :  that  in  1873  application 
was  made  to  the  board  of  water  commissioners  for  a  reduction,  but  they 
refused  relief;  that  plaintiff,  thereupon,  refused  to  pay  the  overcharge 
and  the  board  sent  down  a  man  to  turn  off  the  water  from  plaintitt*'s 
premises ;  that  when  he  came,  in  order  to  prevent  the  water  from  being 
turned  off,  plaintiff  paid  the  license;  that  plaintiff's  foundry  was  en- 
tirely dependent  for  its  supply  of  water  on  the  city  waterworks,  and 
that  if  the  water  had  been  turned  off  plaintiff  would  have  been  com- 
pelled to  close  their  foundry  and  thus  have  suffered  a  heavy  loss.  It 
further  appeared  that  the  water  never  was,  in  point  of  fact,  turned  off ; 
that  none  of  plaintiff's  property  was  ever  seized,  and  none  of  plaintiff's 
officers  or  employes  were  ever  arrested,  nor  was  any  threat  of  seizure 
or  arrest  ever  made;  that  no  written  protest  was  ever  filed  by  plaintiff; 
and  that  after  1873  the  license  was  reduced  to  the  original  rate.  This 
was  the  substance  of  the  plaintiff's  evidence.  At  its  conclusion  the 
court,  at  the  request  of  the  defendant,  gave  an  instruction  that  the 
plaintiff  could  not  recover.  There  was  judgment  for  the  defendant, 
which  judgment  was  affirmed  by  the  St.  Louis  court  of.  appeals,  and 
plaintiff  then  appealed  to  this  court. 

Sherwood,  J.  The  instruction  in  the  nature  of  a  demurrer  to  the 
evidence  should  not  have  been  given.  The  money  sought  to  be  recov- 
ered was  not  voluntarily  paid.  None  of  the  three  cases  cited  by  the  de- 
fendant are  analogous  to  the  present  one.  Two  of  them  follow  in  the 
wake  of,  and  were  similar  in  their  essential  facts  to  that  of  Walker  v. 
City  of  St.  Louis,  15  Mo.  563.  There  the  party  who  afterward  com- 
plained, made  no  objection ;  paid  the  taxes ;  saw  them  applied  to  the  im- 
provement and  enhancement  of  the  value  of  the  property  on  which  they 
were  levied,  and  years  afterward,  for  the  first  time,  is  the  complaint 
made.  Of  course  this  was  a  mere  voluntary  payment,  and  no  right  to 
recover  any  excess  existed.  But  no  such  case  is  presented  by  the  pres- 
ent record.  Here  the  parties  who  paid,  objected  and  protested  from  the 
first.    They  vainly  called  the  attention  of  the  officers  appointed  to  assess 


524  BENEFITS   CONFERRED   UNDER   COMPULSION  (Ch.  5 

and  collect  the  amount  of  the  water  license,  to  the  fact  that  such  amount 
was  in  excess  of  that  allowed  by  the  ordinance;  they  in  vain  appealed 
to  the  board  of  water  commissioners.  The  only  answer  returned  in 
each  instance  was,  "pay,  or  we  will  turn  off  the  water."  It  is  easy  to 
see  that  in  such  circumstances  the  payments  were  not  made  voluntarily. 
They  were  made  under  what  has  been  aptly  termed  "moral  duress ;"  the 
parties  paying  the  excessive  amount,  and  those  receiving  it,  were  not  on 
equal  terms.  The*  city  officials  possessed  the  power,  and  they  threatened 
to  exercise  it,  of  cutting  off  the  water  supply  of  Westlake  &  Button, 
unless  the  illegal  demands  already  mentioned,  met  with  immediate  com- 
pliance. If  this  conditional  threat  had  been  carried  into  execution,  the 
foundry  of  the  applicants  for  license  would  have  been  forthwith  closed, 
and  from  sixty  to  one  hundred  hands  thrown  out  of  employment.  The 
payment  of  the  excess  was,  therefore,  as  much  under  compulsion,  as  if 
the  city  officials  had  been  armed  with  a  warrant  for  the  arrest  of  the 
person  or  the  seizure  of  goods,  in  which  case,  but  one  opinion  would  be 
entertained  as  to  the  nature  of  the  payment  if  made. 

The  case  of  Maguire  v.  State  Savings  Association,  62  Mo.  344,  closely 
resembles,  in  its  salient  characteristics,  and  is  decisive  of  this  one. 
There  the  collector  demanded  interest  on  a  personal  property  tax,  an 
illegal  demand,  and  this  demand  was  coupled  with  another  demand  for 
the  personal  property  tax  itself,  which  was  in  all  respects  legal.  The 
Savings  Association  objected  to  the  payment  of  the  excess,  applied  in 
vain  to  the  county  court  for  an  abatement  of  the  interest,  and  then  paid 
the  whole  sum,  and  we  held,  in  an  action  for  money  had  and  received, 
the  excess  could  be  recovered,  because  "the  money  was  unwillingly  and 
compulsively  paid ;  paid  to  one  seemingly  clothed  with  power  to  seize 
and  sell  goods,  etc.,  for  the  payment  of  the  illegal  demand,  and  paid 
under  fear  that  such  unjust  demand  would  be  enforced."  If  the  fear  of 
the  seizure  of  goods  in  the  one  case  would  make  the  payment  of  the  ex- 
cess, when  made  under  objection,  an  involuntary  one,  certainly  a  pay- 
ment made  to  prevent  immediate  and  incalculable  injury  to  one's  busi- 
ness or  property,  can  be  regarded  in  no  other  light. 

And  it  is  idle  to  say  that  a  tender  should  have  been  made  of  the  exact 
amount  due.  No  such  tender  was  made  or  deemed  necessary  in  Ma- 
guire's  case,  supra,  and  besides,  a  tender  of  a  smaller  sum  than  that 
demanded,  is  never  necessary  where  it  is  apparent  from  the  language 
used,  as  in  this  case,  that  such  tender  would  be  a  mere  nugatory  act, 
and  be  met  with  prompt  and  peremptory  refusal  to  receive  the  amount  if 
tendered.  Hoyt  v.  Sprague,  61  Barb.  (N.  Y.)  497 ;  Holmes  v.  Holmes, 
12  Barb.  (N.  Y.)  137;  Deichmann  v.  Deichmann,  49  Mo.  107. 

Therefore  judgment  reversed  and  cause  remanded.'^* 

28  Accord:  Chicago  v.  N.  W.  Mutual  Ins.  Co.  (1905)  218  111.  40.  75  N.  E.  803; 
Panton  v.  Duluth  Gas  &  Water  Co.  (1892)  50  Miiiu.  175,  52  N.  W.  527,  36  Ain. 
St  Rep.  635. 

In  Lehigh  Coal  &  Navigation  Co.  v.  Brown  (1882)  100  Pa.  338,  the  plaintiff 
in  error  (the  defendant  below)  had,  pursuant  to  statutory  authority,  con- 
structed a  dam  upon  the  Lehigh  river,  the  backwater  from  whicli  formed  a 


Sec.  2)  DURESS 


525 


NIEDERMEYER  v.  UNIVERSITY  OF  MISSOURI. 
(Kansas  City  Ck)urt  of  Appeals,  1895.    61  Mo.  App.  654.) 

Appeal  from  the  Boone  County  Circuit  Court;  John  A.  Hockaday, 
Judge. 

Smith,  P.  J.»°  The  catalogue  of  the  University  of  the  State  for  the 
years  1891  and  1892  contains  the  following  paragraph,  amongst  others  : 

"Tuition  Charges  and  Expenses. — Applicants  for  admission  to  any 
of  the  classes  of  the  law  department,  or  as  special  students  of  elective 
courses,  are  required  to  pay  the  sum  of  fifty  dollars  for  the  first  year's 
attendance  and  forty  dollars  for  each  successive  year. 

"[Signed]  Alexander  Martin,  Dean,  Columbia,  Mo." 

It  appears  that  the  plaintiff  examined  the  said  catalogue,  including 
the  above  quoted  paragraph,  after  which  he  concluded  to  enter  the 
University  with  the  view  of  availing  himself  of  the  entire  course  of 
legal  study  there  specified.  Accordingly,  in  October,  1892,  he  paid  the 
treasurer  of  the  University  the  sum  of  $50  and  was  admitted  to  the 
junior  class  of  the  law  department  for  the  year  ending  June,  1893. 

In  September,  1893,  the  plaintiff,  desiring  admission  to  the  senior 
class  of  said  law  department  for  the  session  ending  June,  1894,  offered 
to  pay  said  treasurer  $40  tuition  for  that  year,  which  offer  was  reject- 
ed, and  finding  that  the  sole  condition  of  admission  was  the  prepayment 
of  a  tuition  fee  of  $50,  he  paid  that  amount  under  protest,  and  was 
thereupon  given  a  matriculation  card.  In  the  catalogue  of  1893  and 
1894  is  a  paragraph  to  the  effect  that  law  students  are  required  to  pay 

pool  on  which  the  plaintiff's  sawmill  was  located.  The  defendant  company 
from  time  to  time  collected  from  the  plaintiff  certain  illegal  tolls,  by  wrong- 
fully threatening  to  draw  off  the  water  in  the  pool  and  thus  prevent  the  plain- 
tiffs from  getting  their  logs  to  the  mill.  The  court,  in  holding  that  the  plain- 
tiff could  recover  the  money  so  collected,  said :  "According  to  the  finding  of 
the  jury  in  the  case  before  us,  there  was  a  threatened  exercise  of  power  ix)s- 
sessed  by  the  company  which,  if  it  had  been  carried  into  execution,  would 
have  practically  ruined  the  business  of  the  plaintiffs  below.  The  jury  has 
found  that  the  threat,  repeated  from  time  to  time,  had  the  effect  of  coercing 
payment  of  the  tolls.  The  plaintiffs  below  had  no  other  means  of  immediate 
relief.  They  were  compelled  either  to  submit  to  the  unlawful  demand  of  the 
company  or  run  the  risk  of  having  their  business  practically  destroyed  or 
seriously  interrupted." 

In  Guetzkow  Bros.  Co.  v.  Breese  (1897)  96  Wis.  591,  72  N.  W.  45,  65  Am. 
St.  Rep.  S3,  the  plaintiff  was  a  lessee  of  the  defendants,  and  pursuant  to  the 
terms  of  the  lease  had  taken  out  insurance  policies  payable  to  the  lessors  and 
the  lessee  as  their  interests  might  appear.  After  a  fire  the  defendants  refused 
to  execute  proofs  of  loss,  without  which  the  lessee  could  not  collect  the  insur- 
ance money,  unless  the  plaintiff'  would  pay  them  a  sum  of  money  which  was 
not  in  fact  owing.  The  court  held  that  the  plaintiff'  could  recover  the  sums 
so  exacted,  saying:  "The  plaintiff  was  in  a  position  where  it  must  obtain  its 
insurance  money  at  once  in  order  to  go  on  with  its  business  and  fulfill  valuable 
outstanding  contracts,  or  it  would  suffer  great  loss.  Under  these  circum- 
stances it  submitted  under  protest  to  the  unjust  demand  in  order  to  obtain  its 
own  money  from  the  insurance  .company.  This  makes  a  case  of  legal  duress 
of  goods." 

30  A  portion  of  the  opinion  is  omitted. 


52G  BENEFITS   CONFERRED   UNDER   COMPULSION  (Cll.  5 

$50  tuition  per  year.  On  substantially  the  foregoing  state  of  facts,  the 
plaintiff  brought  this  suit  before  a  justice  of  the  peace  to  recover  $10 
for  "excessive  tuition  collected  for  law  department,  1893  and  1894." 
There  was  a  trial  in  the  court  below,  where  the  cause  was  removed  by 
appeal,  which  resulted  in  judgment  for  the  defendant,  from  which 
plaintiff  has  appealed. 

The  paragraph  in  the  catalo^gue  of  1892  and  1893  was,  by  its  very 
terms,  a  public  offer  to  admit  persons  as  students  to  any  of  the  classes 
of  the  law  department  of  the  University,  on  payment  of  the  sum  of  $50 
for  the  first  year  and  $40  for  each  successive  year.  The  plaintiff's 
payment  of  $50  and  receipt  of  his  matriculation  card  for  the  years  1892 
and  1893,  constituted  an  implied  acceptance  and  also  notice  of  such 
acceptance.  The  contractual  relations  created  between  the  parties  thus 
became  complete  and  binding.  Society  v.  Brumfiel,  102  Ind.  146,  1  N. 
E.  382,  52  Am.  Rep.  657 ;  Bishop  on  Contracts,  §  322 ;  Wharton  on 
Contracts,  §  241 ;  Love  joy  v.  Railroad,  53  Mo.  App.  386.     *     *     * 

Although  in  the  present  case  the  payment  of  the  excess  was  not  made 
to  preserve  the  inviolability  of  the  person,  or  to  redeem  property  il- 
legally held,  or  to  prevent  its  unlawful  seizure,  yet  it  was  made  to  se- 
cure admission.  It  was  paid  to  remove  what  was  otherwise  an  insur- 
mountable barrier  to  the  completion  of  plaintiff's  legal  education  in  the 
University  of  his  state ;  to  avoid  being  compelled  to  go  abroad  to  seek 
University  advantages,  amply  provided  by  his  own  state  for  all  its 
citizens ;  to  enable  plaintiff  to  gain  admission  to  the  senior  class  oi  the 
law  department  and  thus  speedily  obtain  his  degree ;  and  to  prevent 
an  interference  and  break  in  the  course  of  his  legal  education,  and  the 
loss  of  money  expended  in  reaching  the  University  and  providing  text- 
books, etc.  The  plaintiff  and  defendants  were  not  on  equal  terms. 
The  defendants  possessed,  and  in  fact  threatened  to  exercise,  the  power 
of  excluding  the  plaintiff  unless  the  illegal  demand  of  their  treasurer 
met  with  compliance. 

Under  these  circumstances,  can  it  be  said  the  payment  was  volun- 
tary? Was  it  not  under  moral  duress?  Was  not  the  plaintiff  under 
as  much  compulsion  as  if  the  defendants  had  been  armed  with  a  war- 
rant for  the  arrest  of  plaintiff  or  the  seizure  of  his  goods?  If  the  fear 
of  the  seizure  of  goods,  as  in  Maguire  v.  Savings  Ass'n,  62  Mo.  344, 
would  make  the  payment  of  the  extorsive  excess,  if  made  under  objec- 
tion, compulsive  and  involuntary,  it  would  seem  that  a  payment  made 
to  prevent  the  incalculable  injury  already  indicated  must  be  regarded 
in  the  same  light.  According  to  some  of  the  authorities  within  and 
without  this  state,  from  which  we  have  quoted,  the  plaintiff's  action 
can  not  be  maintained ;  but  according  to  the  most  recent  rulings  of  the 
supreme  court  just  referred  to,  it  would  appear  that  it  can. 

After  the  proposition  contained  in  the  catalogue  of  1892  and  1893 
had  been  accepted  by  plaintiff,  and  the  rights  of  the  plaintiff  had  there- 
by become  fixed,  it  was  not  within  the  power  oi  the  defendants  to  alter 
or  abridge  those  rights  by  withdrawing  the  proposition  and  publishing 


Sec.  2)  DURESS  527 

that  contained  in  the  catalogue  of  1893  and  1894.  And  whether  plain- 
tiff had  notice  of  that  fact  before  he  applied  for  admission  to  the  second 
year's  course  or  not,  it  seems  to  us,  can  make  no  difference.  The  prop- 
osition contained  in  the  catalogue  of  1892  and  1893  was  that  of  the 
state,  and,  when  accepted,  good  faith  and  fair  dealing  required  it  should 
be  carried  out  on  the  part  of  the  state  to  the  letter.  An  enlightened 
and  progressive  state  can  ill  afford  to  trifle  with  the  rights  of  the  citi- 
zen in  the  slightest  degree.  The  court  erred  in  rejecting  the  theory 
contained  in  the  plaintift"'s  instruction  and  in  adopting  that  contained  in 
those  of  the  defendants. 

The  judgment  must  be  reversed  and  cause  remanded,  with  directions 
to  the  circuit  court  to  enter  judgment  for  the  plaintiff.    All  concur. 


STEELE  V.  WILLIAMS. 

(Court  of  Exchequer,  1S53.     8  Excli.  624.) 

Action  for  money  had  and  received  for  tlie  use  of  the  plaintiff.  Plea, 
never  indebted. 

At  the  trial,  before  the  Judge  of  the  Sheriff's  Court  of  London,  it 
appeared  that  the  action  was  brought  by  the  plaintiff,  an  attorney,  to 
recover  from  the  defendant,  who  was  the  parish  clerk  of  St.  Mary, 
Newington,  the  sum  of  £4.  7s.  6d.,  paid  by  the  plaintiff's  clerk  to  the 
defendant,  for  fees  claimed  in  respect  of  searches  made  and  extracts 
taken  from  the  Register  Book  of  Burials  and  Baptisms  in  that  parish. 
The  plaintiff's  clerk  applied  at  the  defendant's  house,  where  the  regis- 
ters were  kept,  for  permission  to  search  them.  He  told  the  defendant 
that  he  did  not  want  certificates,  but  only  to  make  extracts.  The  de- 
fendant said,  the  charge  would  be  the  same,  whether  he  made  extracts 
or  had  certificates.  The  plaintiff's  clerk  searched  through  four  years, 
was  engaged  two  hours,  and  took  twenty-five  extracts,  namely,,  twelve 
burials  and  thirteen  baptisms.  He  inquired  of  the  defendant  what  was 
his  charge,  and  the  defendant  replied  3s.  6d.  for  each  extract,  amount- 
ing in  the  whole  to  £4.  7s.  6d.,  which  the  plaintiff's  clerk  then  paid. 

The  plaintiff  promptly  demanded  that  defendant  return  the  sum  so 
paid,  less  the  usual  charge  for  searches.  On  the  defendant's  refusal, 
this  action  was  brought. 

It  was  submitted,  on  the  part  of  the  defendant,  first,  tliat  the  defend- 
ant was  not  the  proper  party  to  be  sued,  but  the  action  should  have 
been  against  the  rector ;  secondly,  that  the  claim  was  not  illegal ;  and 
thirdly,  that  the  payment  was  voluntary.  It  being,  however,  agreed 
on  both  sides,  that  the  question  was  one  of  law  for  tlie  decision  of  the 
judge,^^  he  decided  that  the  payment  was  voluntary,  and  directed  a  ver- 

31  The  question  as  to  whether  payments  were  voluntarily  made  when  the 
facts  are  undisputed  was  held  to  be  a  question  of  law  lor  the  court  in  Eslow 
V.  City  of  Albion  (1908)  153  Mich.  720,  117  N.  W.  328,  22  L.  R.  A.  (N.  S.)  872, 


528  BENEFITS  CONFERRED   UNDER  COMPULSION  (Ch.  5 

diet  for  the  defendant,  reserving  leave  for  the  plaintiff  to  move  to  enter 
a  verdict  for  £4.  7s.  6d.,  or  any  smaller  sum,  if  the  Court  should  be  of 
opinion  that  the  defendant  was  the  proper  party  to  be  sued,  that  the" 
demand  was  illegal,  and  the  payment  not  voluntary. 

Willes,  obtained  a  rule  nisi  accordingly. 

Platt,  B.^^  I  am  also  of  opinion  tliat  the  verdict  ought  to  be  entered 
for  the  plaintiff.  Under  the  6  &  7  Will.  IV,  c.  86,  s.  35,  there  are  only 
two  things  in  respect  of  which  the  incumbent  is  entitled  to  fees,  namely, 
for  a  search  and  for  a  certified  copy  of  the  register.  A  fee  of  Is.  is 
allowed  for  a  search  throughout  the  whole  period  of  the  first  year,  and 
Is.  6d.  for  every  additional  year.  Those  are  all  the  fees  demandable 
in  respect  of  a  search.  With  regard  to  taking  extracts,  no  fee  is  men- 
tioned, and  the  incumbent  has  no  right  to  tax  any  one  for  so  doing. 
But  inasmuch  as  before  the  search  began  the  defendant  told  the  plain- 
tiff's clerk  that  the  charge  would  be  the  same  whether  he  made  extracts 
or  had  certified  copies,  and  under  that  pressure  the  extracts  were 
obtained,  and  it  would  have  been  most  dishonourable  for  the  party, 
after  having  got  the  extracts,  to  refuse  to  pay,  the  money  so  obtained 
may  be  recovered  back.  The  defendant  took  it  at  his  peril ;  he  was  a 
public  officer,  and  ought  to  have  been  careful  that  the  sum  demanded 
did  not  exceed  the  legal  fee.  As  to  the  defendant  being  the  proper 
person  to  be  sued,  it  is  almost  useless  to  make  any  observation.  He 
was  not  justified  in  taking  the  money,  and  is  responsible  for  his  own 
illegal  act. 

Rule  absolute  to  enter  a  verdict  for  the  plaintiff  for  £3.  14s.  6d.^' 

following  Betts  v.  Village  of  Reading  (1892)  93  Mich.  77,  52  N.  W.  940.  But  in 
Wooley  V.  Chicago  &  N.  W.  Ry.  (1912)  150  Wis.  183, 136  N.  W.  616,  and  Link  v. 
Aiple-Uemmelniaun  Real  Estate  Co.  (1914)  182  Mo.  App.  531,  165  S.  W.  832,  this 
was  held  to  be  a  question  for  the  jury. 

32  The  statement  of  facts  is  abridged  and  the  concurring  opinions  of  Parke 
and  Martin,  BB.,  are  omitted. 

33  In  Clinton  v.  Strong  (1812)  9  Johns.  (N.  Y.)  370,  a  vessel  owned  by  the 
plaintiffs  had  been  wrongfully  detained  for  the  violation  of  the  nonintercourse 
act  of  1810,  and  upon  proof  that  the  case  was  within  certain  exceptions  to  the 
act  it  was  released,  but  only  upon  the  payment  of  eosts  to  the  defendant,  the 
United  States  marshal,  which  payment  was  unlawfully  exacted.  This  action 
was  brought  to  recover  the  sum  so  paid.  The  court  said :  "The  payment  of 
the  costs  could  not  be  considered  a  voluntary  act.  They  were  exacted  by  the 
officer,  colore  officii,  as  a  condition  to  the  retlelivery  of  the  property.  It  would 
lead  to  the  grossest  abuse  to  hold  a  payment  made  under  such  circumstances 
a  voluntary  payment,  precluding  the  party  from  contesting  it  afterwards." 

In  Ogden  v.  Maxwell  (1855)  3  Blatchf.  319,  Fed.  Cas.  No.  10,458,  where 
plaintiffs'  had  been  required  to  pay  to  defendant,  as  collector  of  the  port  of 
New  York,  a  sum  larger  than  was  authorized  by  the  statute,  for  a  permit  to 
land  the  baggage  of  passengers  from  their  vessel,  the  court  pointed  out  that: 
"It  is  not  necessary,  to  the  maintenance  of  a  civil  action  for  the  recoverj'  of 
money  wrongfully  collected,  that  any  turpitude  should  be  proved  against  the 
officer.  The  suit  in  no  way  rests  on  any  illegal  purpose  of  the  defendant  in 
enacting  the  payment.  It  is  well  sustained,  if  his  official  power  was  exercised 
in  the  collection,  without  warrant  of  law." 

In  Sheibley  v.  Cooper  (1907)  79  Neb.  232,  112  N.  W.  363,  it  was  held  that 
the  payment  of  excessive  fees  to  a  former  clerk  of  court  after  his  tei-m  of 


Sec.  2)  DURESS  529 

MEARKLE  v.  HENNEPIN  COUNTY. 

(Supreme  Court  of  Minnesota,  1S90.     44  Minn.  546,  47  N.  W.  165.) 

Appeal  by  defendant  from  an  order  of  the  district  court  for  Henne- 
pin County,  Young,  J.,  presiding,  overruling  a  demurrer  to  the  com- 
plaint. 

Dickinson,  J.  This  action  is  for  the  recovery  of  the  sum  of  $5,- 
000,  vv^hich  the  plaintiffs,  as  the  executors  of  the  will  of  Thomas  A. 
Harrison,  paid  to  the  treasurer  of  Hennepin  county,  in  March,  1888, 
pursuant  to  the  statute,  (chapter  103,  Laws  1885,)  and  which,  by  the 
terms  of  the  law,  was  required  to  be  so  paid  as  a  condition  precedent 
to  the  exercise  of  the  jurisdiction  of  the  probate  court  in  the  settlement 
of  the  estate.  The  provisions  of  that  law  are  more  fully  set  forth  in 
our  decision  in  State  v.  Gorman,  40  Minn.  232,  41  N.  W.  948,  2  L.  R. 
A.  701,  in  which  the  statute  was  held  to  be  unconstitutional.  This 
appeal  is  from  an  order  overruling  a  demurrer  to  the  complaint,  and 
the  question  to  be  decided  is  whether,  the  law  requiring  such  payment 
to  be  made  being  unconstitutional,  the  money  paid  under  the  circum- 
stances stated  in  the  complaint  may  be  recovered  by  action. 

The  circumstances  connected  with  the  payment  were  as  follows :  The 
deceased  was  a  resident  of  Hennepin  county  at  the  time  of  his  death. 
His  will  was  duly  proved  in  the  probate  court  of  that  county,  and  these 
plaintiffs  became  the  qualified  executors  of  it.  An  appraisal  of  the 
estate  was  made  in  accordance  with  the  law,  which  showed  that  there 
was  personal  property  belonging  to  the  estate  of  the  value  of  $897,- 
058.79,  and  real  property  of  the  value  of  $383,600.  Upon  the  return 
and  filing  of  the  inventory  in  probate  court,  the  judge  of  that  court, 
pursuant  to  the  provisions  of  the  statute,  refused  to  allow  the  further 
administration  of  the  estate  to  proceed,  without  the  payment  into  the 
county  treasury  of  the  sum  of  $5,000,  although  the  plaintiffs  formally 
petitioned  the  court  for  the  allowance  of  further  proceedings,  and 
sought  an  order  for  creditors  to  produce  and  file  their  claims.  The 
payment  was  then  made  under  a  formal  protest  in  writing  wherein 
the  executors  set  forth  the  refusal  of  the  probate  court  to  allow  such 
proceedings  for  the  settlement  of  the  estate  except  upon  the  condition 
precedent  that  such  payment  be  made,  and  wherein  they  protested 
against  such  requirement  on  the  ground  that  the  statute  was  uncon- 
stitutional and  void.  Included  in  the  personal  property  of  the  estate, 
was  a  large  amount  of  commercial  paper,  bonds,  and  stocks  which  re- 
quired immediate  attention  on  the  part  of  the  executors,  and  any  delay 
in  the  settlement  of  the  estate  would  have  been  of  great  detriment  to 
the  estate ;   and,  in  order  to  properly  manage  and  protect  the  estate  as 

office  had  expired  was  a  voluntarj-  payment.  "It  was  not  a  case  of  official 
extortion  or  oppression,  but  an  ordinary  transaction  between  two  men  dealing 
on  equal  terms." 

Thuks.Quasi  Cont. — 34 


530  BENEFITS  CONFERRED   UNDER  COMPULSION  (Ch.  5 

is  alleged,  the  plaintiffs  were  compelled  to  and  did  make  the  payment. 

The  facts  being  as  above  set  forth,  we  consider  that  the  right  to 
recover  the  money,  the  payment  of  which  was  thus  illegally  exacted, 
has  been  determined  by  the  decisions  which  we  have  heretofore  made. 
S'tate  V.  Gorman,  supra;  State  v.  Nelson,  41  Minn.  25,  42  N.  W.  548, 
4  L.  R.  A.  300,  and  cases  cited.  The  latter  case  cannot  be  distinguished 
in  principle  from  this,  and  the  reasons  and  authorities  upon  which  that 
decision  was  made  are  so  fully  applicable  to  the  question  now  before 
us  that  we  refer  to  that  opinion  as  expressing  what  we  deem  to  be  the 
law,  in  accordance  with  which  this  case  must  be  decided. 

But  little  more  need  be  added.  The  necessity  for  going  on  with  the 
legally  prescribed  proceedings  in  the  probate  court  for  the  administra- 
tion, care,  and  settlement  of  this  very  large  estate  is  apparent  from  the 
facts  stated.  The  court,  whose  jurisdiction  was  exclusive,  refused  to 
exercise  the  necessary  jurisdiction,  acting  in  compliance  with  the  ex- 
press requirement  of  the  statute.  The  court  decided  that  the  statute 
must  be  complied  with,  and  no  appeal  would  lie  from  the  order  of  the 
court  denying  the  petition  of  the  plaintiffs.  No  course  was  left  to  the 
executors  but  to  pay  the  tax,  as  required  by  the  statute  and  by  the 
order  of  the  probate  court,  or  to  seek  by  mandamus  proceedings,  if  that 
would  have  been  a  proper  remedy,  to  secure  a  further  adjudication  as 
to  the  constitutionality  of  the  law.  But,  if  the  latter  course  were  pur- 
sued, the  proceedings  for  the  administration  of  the  estate  would  have 
remained  in  suspense  until  a  final  adjudication  could  be  had;  and,  in 
view  of  the  facts  that  the  payment  was  exacted  by  a  statute  law  which 
had  been  in  force  and  had  been  observed  for  several  years ;  that  the 
court  having  exclusive  jurisdiction  in  this  matter,  decided  the  law  to 
be  constitutional ;  that  the  plaintiffs  could  not  know  that  the  law  was 
invalid,  or  that  it  would  be  so  declared  to  be  by  this  court;  of  the 
magnitude  of  the  interests  involved ;  and  of  the  fact  that  the  plaintiffs 
might  well  consider  that  they  would  be  deemed  culpable  if  they  were 
to  suffer  the  administration  of  this  estate  to  be  delayed, — we  think  that 
the  payment  is  to  be  deemed  so  far  compulsory  upon  them  that,  being 
made  under  protest,  the  money  may  be  recovered  as  an  illegal  exaction 
and  not  voluntarily  paid. 

We  decide  against  the  appellant,  without  discussing  it,  the  point  that 
the  plaintiffs  ought  not  to  recover,  because  this  action  was  not  com- 
menced until  two  years  had  elapsed  after  the  money  was  paid. 

Order  affirmed.^* 

84  Accord:  Cook  County  v.  Fairbank  (1906)  222  111.  578,  78  N.  E.  895;  Trower 
V.  City  and  County  of  San  Francisco  (1907)  152  Cal.  479,  92  Pac.  1025,  15  L. 
R.  A.  (N.  S.)  183. 


Sec.  2)  DURESS  531 

HEISERMAN  V.  BURLINGTON,  C.  R.  &  N.  RY.  CO. 

(Supreme  Court  of  Iowa,  1884.     63  Iowa,  732,  IS  N.  W.  903.) 

Action  at  law  to  recover  certain  sums  paid  by  plaintiff  to  defendant 
for  the  transportation  of  grain  upon  defendant's  railroad  in  excess  of 
reasonable  and  just  charges  therefor.  The  cause  was  tried  to  the  court 
without  a  jury,  and  judgment  was  rendered  for  defendant.  Plaintiffs 
appeal. 

Beck,  J.^"  1.  The  petition  alleges  that  between  the  twenty-eighth 
day  of  August,  1877,  and  the  fourth  day  of  February,  1878,  the  plain- 
tiffs delivered  to  defendant,  for  transportation  upon  its  railroad  from 
West  Union  to  Postville,  Cedar  Rapids,  and  Burlington,  all  points  with- 
in this  state,  certain  large  quantities  of  grain  to  be  delivered  to  connect- 
ing lines  of  railroad  for  transportation  to  Milwaukee,  in  the  state  of 
Wisconsin;  that  no  other  railroad  than  defendant's  reached  West 
Union,  and  plaintiffs  were  therefore  compelled  to  procure  transporta- 
tion upon  it;  and  that  defendant  charged  and  exacted  large  sums  in 
excess  of  reasonable  and  just  charges  for  the  transportation  of  the 
grain,  which  plaintiffs  were  compelled  to  pay.  The  number  of  ship- 
ments, the  quantity  of  grain  in  each,  the  charges  paid,  and  the  sums 
paid  in  each  instance  in  excess  of  reasonable  charges,  and  other  par- 
ticulars, are  shown  by  an  exhibit  to  the  petition,  which  need  not  be 
more  particularly  noticed. 

As  defenses  to  the  action,  defendant  alleges — *  *  *  Second,  that 
plaintiffs  "knowingly,  voluntarily,  and  willingly"  paid  the  charges  now 
claimed  by  them  to  be  excessive  and  unreasonable ;  and,  third,  tliat 
the  action  is  barred  by  the  statute  of  limitations.     *     =f     ♦ 

3.  It  will  be  observed  that  this  action  is  not  brought  to  recover  the 
penalties  for  overcharges  by  the  railroad  companies,  provided  by  chap- 
ter 68,  Acts  Fifteenth  General  Assembly,  in  force  when  the  acts  com- 
plained of  by  plaintiffs  were  done.  The  plaintiffs  seek  to  recover  the 
sums  paid  by  them  in  excess  of  reasonable  charges,  and  nothing  more. 
The  liability  of  defendant  for  money  collected  for  the  transportation 
of  property,  in  excess  of  reasonable  charges,  existed  at  common  law. 
The  enactment  of  a  statute  imposing  penalties  for  excessive  charges, 
recoverable  by  the  party  injured,  or  providing  that  for  exacting  and 
collecting  them  the  agent  of  the  railroad  company  shall  be  guilty  of  a 
misdemeanor,  does  not  take  away  the  right  existing  at  common  law  to 
recover  money  paid  in  excess  of  reasonable  charges.  See  City  of 
Dubuque  v.  111.  Cent.  Ry.  Co.,  39  Iowa,  56;  City  of  Burlington  v.  B. 
&  N.  Ry.  Co.,  41  Iowa,  134;  Crittenden  v.  Wilson,  5  Cow.  (N.  Y.)  165, 
15  Am.  Dec.  462;  Gooch  v.  Stephenson,  13  Me.  371;  Candee  v. 
Hay  ward,  37  N.  Y.  653.  The  injured  party  may  waive  the  tort  created 
by  statute  and  sue  upon  the  implied  contract  raised  by  the  law,  where- 
as Only  so  much  of  the  opinion  as  deals  with  the  second  and  third  defenses 
is  printed. 


532  BENEFITS   CONFERRED   UNDER  COMPULSION  (Ch.  5 

by  the  carrier  is  obliged  to  repay  to  the  consignee  or  consignor  of  the 
property  all  sums  exacted  in  excess  of  reasonable  compensation.  Nor 
need  the  plaintifif,  in  a  case  brought  to  enforce  such  an  obligation,  show 
objection  or  protest  prior  to  the  payment  made  in  excess  of  a  reason- 
able compensation. 

These  rules  are  founded  upon  the  consideration  that  railroad  com- 
panies are  public  carriers,  and  those  who  employ  them  are  in  their 
power,  and  must  bow  to  the  rod  of  authority  which  they  hold  over 
consignors  and  consignees  of  property  transported  by  them.  If  the 
consignor  refuses  to  pay  or  contract  to  pay  the  charges  fixed  by  the 
railroad  company,  his  goods  will  not  be  carried ;  or,  if  the  consignee 
refuses  to  make  the  payment  demanded,  the  goods  will  not  be  deliver- 
ed. In  both  cases  great  loss  and  even  destruction  of  profitable  business 
will  result.  If  railroad  companies  should  be  held  free  from  liability 
for  excessive  charges,  the  whole  business  of  the  country  would  be  sub- 
ject to  unjust  exactions  resulting  in  oppression  to  citizens,  and  destruc- 
tive to  useful  and  profitable  business.  The  law  does  not  require  objec- 
tion or  protest  to  the  payment  of  unjust  charges,  for  the  reason  that 
they  would  be  vain,  being  addressed  to  those  who  occupy  the  com- 
manding position  of  power  to  enforce  obedience  to  their  requirements. 

For  another  reason  they  are  not  required.  Those  who  do  business 
with  railroads  never  come  in  contact  with  the  officers  who  possess 
authority  to  fix  or  abate  rates  of  charges ;  indeed,  they  usually  hardly 
know  their  names,  or  where  to.  find  them.  Their  places  of  business 
are  usually  in  cities  distant  from  points  where  much  of  the  property  is 
received  for  transportation.  If  the  consignee  should  be  required  to 
make  objection  or  protest  to  these  ofiicers,  delays  would  follow,  result- 
ing in  loss ;  and,  in  the  case  of  the  shipment  of  some  kinds  of  perish- 
able property,  in  its  decay.  These  considerations  take  the  case  from 
the  operation  of  the  familiar  rule  which  forbids  recovery  on  account 
of  payments  voluntarily  made  without  objection  or  protest.  This  rule 
does  not  apply  to  cases  of  compulsory  payments,  and  does  not  require 
objection  and  protest  where  they  would  be  unavailing  and  vain.^'^  The 
doctrines  we  have  expressed  are  supported  by  the  following  authori- 
ties: Chicago  &  A.  Ry.  Co.  v.  Coal  Co.,  79  111.  121 ;  Mobile  &  M.  Ry. 
Co.  V.  Steiner,  61  Ala.  559;  Parker  v.  G.  W.  Ry.  Co.,  7  Man.  &  G.  253; 
Harmony  v.  Bingham,  12  N.  Y.  99,  62  Am.  Dec.  142;  Chandler  v. 
Sanger,  114  Mass.  364,  19  Am.  Rep.  367;  Stephan  v.  Daniels,  27  Ohio 
S't.  527;  Robinson  v.  Ezzell,  72  N.  C.  231 ;  Carew  v.  Rutlierford,  106 

86  In  De  Graff  v.  County  of  Ramsey  (1S91)  46  Minn.  319,  48  N.  W.  1135,  the 
plaintiff,  an  executor,  paid  ,$1,000  into  the  county  treasury  pursuant  to  tlie 
requirements  of  a  statute  subsequently  held  unconstitutional.  No  protest 
was  made  at  the  time.  It  was  held  a  voluntary  payment.  The  court  said : 
"We  do  not  mean  to  say  that  in  a  clear  case  of  coercion  or  duress  a  protest 
Is  necessary,  or  that  it  would  be  sufhcient  without  circumstances  of  coercion ; 
but  if  there  be  doubt,  under  the  circumstances,  that  the  payment  is  voluntary, 
it  may  be  taken  into  account  in  determining  the  question  that  the  payor  de- 
clared as  a  part  of  his  act  that  he  paid  involuntarily." 


Sec.  2)  DURESS  533 

Mass.  1,  8  Am.  Rep.  287;  Ivafayette  &  I.  Ry.  Co.  v.  Pattison,  41  Ind. 
312;  Philanthropic  Building  Ass'n  v.  McKnight,  35  Pa.  470;  Wood  v. 
Lake,  13  Wis.  84;  Wheaton  v.  Hibbard,  20  Johns.  (N.  Y.)  290,  11  Am. 
Dec.  284;  Thomas  v.  Shoemaker,  6  Watts  &  S.  (Pa.)  179;  Palmer  v. 
Lord,  6  Johns.  Ch.  (N.  Y.)  95 ;  State  Bank  v.  Ensminger,  7  Blackf. 
(Ind.)  105. 

4.  The  action,  as  we  have  shown,  is  not  brought  to  recover  the 
penalty  provided  by  statute,  which  is  barred  by  the  statute  of  limita- 
tions in  two  years.  Herriman  v.  B.,  C.  R.  &  N.  Ry.  Co.,  57  Iowa,  187, 
9  N.  W.  378,  10  N.  W.  340.  Being  an  action  to  recover  upon  an  im- 
plied contract,  it  is  not  barred  until  the  expiration  of  five 
years.     *     *     * 

The  judgment  of  the  circuit  court  is  reversed,  and  the  cause  will  be 
remanded  for  proceedings  in  harmony  with  this  opinion.*' 


SMITHWICK  V.  WHITLEY. 
(Supreme  Court  of  North  Carolina,  1910.     152  N.  C.  369,  67  S.  E.  913.) 

Appeal  from  Ward,  J.,  of  Beaufort. 

Civil  action  to  recover  $280  alleged  to  have  been  paid  under  duress. 
The  facts  are  as  follows : 

On  December  3,  1900,  plaintiff  made  a  contract  with  defendants  to 
purchase  a  piece  of  land  containing  13.82  acres,  for  $483.72,  and  to 
give  in  payment  ten  notes  of  $46.99  each,  one  to  be  paid  annually,  se- 
cured by  a  mortgage  on  the  land,  and  the  balance  in  cash.  The  plaintiff 
alleges  and  proves  that  said  notes  and  mortgage  were  delivered  to  de- 
fendant, and  the  bargain  consummated  at  that  time  (the  mortgage  and 
notes  being  executed  about  a  month  thereafter  and  delivered  to  defend- 
ant; and  the  deed  bearing  date  December  31,  1900,  with  acknowledg- 
ment of  grantor  on  January  15,  1901,  being  left  with  defendant  to  be 
registered).  The  plaintiff  went  into  possession  of  the  land  and  began 
clearing  it.  Defendant  denies  that  the  deal  was  consummated,  or  that 
the  notes  and  mortgage  were  left  with  him.  The  deed  had  not  been 
turned  over  to  plaintiff.  Some  time  in  February,  1904,  defendant  noti- 
fied plaintiff  that  his  deal  on  the  swamp  land  was  off.     On  March  4, 

3  7  Where  the  payment  of  the  excessive  charges  is  made  after  the  receipt 
of  the  goods  by  the  consignee,  there  is  no  duress,  and  payments  so  made  are 
not  recoverable.  Kenneth  &  Gibson  v.  Railroad  Co.  (ISGS)  15  Rich.  (S.  C.)  2S4, 
98  Am.  Dec.  382 ;  Knudsen-Ferguson  Fruit  Co.  v.  C,  St.  P.,  M.  &  O.  Ry.  Co. 
(1906)  149  Fed.  973,  79  C.  C.  A.  483. 

See  also  Brown  v.  Worthington  (1911)  152  Mo.  App.  351,  133  S.  W.  93. 

In  Peters  v.  Railroad  Co,  (18S4)  42  Ohio  St.  275,  51  Am.  Rep.  814,  the  plain- 
tiff, a  shipper,  although  making  his  payments  of  freight  charges  after  he  had 
received  the  goods,  was  obliged  to  pay  excessive  charges  in  order  to  obtain 
the  transportation  of  other  goods.  Held  a  payment  under  compulsion  (an 
able  opinion,  discussing  at  length  many  importiint  decisions).  Accord  :  Trans- 
portation Co.  V.  Sweetzer  (1885)  25  W.  Va.  434.  See  also  Knee  v.  Yankee 
Waist  Co.  (1915),  167  App.  Div.  753,  153  N.  Y.  Supp.  56. 


534  BENEFITS  CONFERRED  UNDER  COMPULSION         (Ch.  5 

19Q4,  plaintiff  went  to  see  defendant,  and  defendant  said,  if  he  (plain- 
tiff) would  make  it  $50  an  acre,  he  would  give  him  (plaintiff)  the  deed. 
The  price  agreed  on  in  December,  1900,  and  the  consideration  named  in 
the  deed,  having  been  $35.00  per  acre.  After  considerable  talk,  plaintiff 
agreed  to  pay  the  price  demanded  rather  than  lose  the  land  he  had  been 
working  on  for  three  years.  He  had  ditched  it,  fenced  it,  and  got  it  in 
tillable  condition.  He  paid  $275,  the  amount  demanded,  and  defendant 
gave  him  his  deed  dated  December  31,  1900. 

Upon  an  intimation  by  the  court  as  to  the  charge,  plaintiff  submitted 
to  a  nonsuit  and  appealed. 

Brown,  J.  We  agree  with  his  honor  that  the  cause  of  action  upon 
plaintiff's  own  evidence  is  barred  by  the  statute  of  limitations,  assuming 
that  a  cause  of  action  had  been  made  out ;  but  no  cause  of  action  for 
duress  is  made  out  in  the  evidence  or  stated  in  the  complaint. 

The  payment  of  the  $280  in  order  to  get  a  deed  for  the  land  was 
voluntary.  The  plaintiff  had  a  right  to  stand  on  his  legal  rights  in  the 
land  if  he  had  any,  and  assert  his  equities  in  tlie  courts  of  the  state. 

Duress  exists  where  one  by  the  unlawful  act  of  another  is  induced 
to  make  a  contract  or  perform  or  forego,  some  act  under  circumstances 
which  deprive  him  of  the  exercise  of  free  will.  14  Cyc.  1123,  and  cases 
cited;  Bank  v.  Logan,  99  Ga.  291,  25  S.  E.  692;  Matthews  v.  Smith, 
67  N.  C.  374;  Miller  v.  Miller,  68  Pa.  486. 

Duress  is  commonly  said  to  be  of  the  person  where  it  is  manifested 
by  imprisonment,  or  by  threats,  or  by  an  exhibition  of  force  which 
apparently  cannot  be  resisted.  Or  it  may  be  of  the  goods,  when  one  is 
obliged  to  submit  to  an  illegal  exaction  in  order  to  obtain  possession  of 
his  goods  and  chattels  from  one  who  has  wrongfully  taken  them  into 
possession.  Astley  v.  Reynolds,  2  Strange,  915,  is  a  leading  case  on 
tliis  subject.    Hackley  v.  Headley,  45  Mich.  573,  8  N.  W.  511. 

There  is  neither  duress  of  the  person  or  goods  here.  The  plaintiff 
was  in  actual  possession  of  the  land,  and  the  defendant  denied  his  title, 
claiming  that  the  "deal  had  not  been  consummated."  In  order  to  get  a 
deed,  plaintiff  acceded  to  defendant's  demand  and  paid  the  advanced 
price.  Upon  all  the  authorities,  it  was  a  voluntary  payment,  an  adjust- 
ment of  the  dispute.     No  error.^^ 

38  No  recovery  may  be  had  of  a  payment  of  money  obtained  by  duress,  If 
the  same  was  actually  due.  The  retention  of  such  money  is  "not  ineiiuitable 
nor  against  good  conscience."  City  of  Chicago  v.  Malkan  (1J>05)  119  111.  App. 
l'A2. 

As  to  duress  of  real  property,  see  Joannin  v.  Ogilive,  infra,  page  540. 


Sec.  3)  COMPULSION  THROUGH   LEGAL  PROCEEDINGS  535 


SECTION  3.— COMPULSION  THROUGH  LEGAL  PROCEED- 
INGS 


BROWN  V.  McKINALLY. 
(Nisi  Prius,  before  Lord  Kenyon,  C  J.,  1795.    1  Esp.  279.) 
This  case  is  printed  at  page  64,  supra.^® 


DICKERMAN  v.  LORD. 
(Supreme  Court  of  Iowa,  1866.    21  Iowa,  338,  89  Am.  Dec.  579.) 

Appeal  from  Winneshiek  District  Court. 

The  present  action  was  commenced  in  the  Winneshiek  District  Court 
by  attachment  against  the  defendants  as  non-residents  of  the  State. 

The  plaintiff  was  a  resident  of  Decorah,  in  this  State,  and  the  de- 
fendants of  Chicago,  where  they  are  engaged  in  business  as  wholesale 
druggists. 

It  is  admitted  that,  in  June  and  July,  1863,  plaintiff  purchased  mer- 
chandise of  the  defendant  to  the  amount  of  $458.97.  It  is  also  admit- 
ted that,  in  July  and  September,  1863,  payments  were  made  by  plain- 
tiff to  the  amount  of  $284.06,  leaving  a  balance  due  defendants  of 
$174.91. 

This  balance  ($174.91),  the  plaintiff  claims  he  paid  to  defendants, 
in  October,  1863,  at  their  store  in  Chicago,  but  says  that,  if  he  took  a 
receipt,  it  is  lost.  Of  this  payment,  plaintiff  produced  no  evidence 
except  his  own  oath.  Both  defendants  positively  deny  that  any  such 
payment  was  made  to  them  by  the  plaintiff.  Several  circumstances, 
not  very  conclusive,  were  relied  upon  by  the  parties  to  fortify  their 
respective  claims,  as  regards  this  disputed  payment ;  but  these,  as  the 
opinion  does  not  turn  upon  the  weight  of  evidence,  need  not  be  spe- 
cially detailed.  In  May,  1865,  the  present  defendants  commenced  an 
action  against  the  present  plaintiff  in  Chicago  by  attachment,  and  gar- 
nished certain  moneys  which  plaintiff  had  on  deposit  in  one  of  the 
banks  in  that  city.  On  the  next  day  after  the  attachment  was  served, 
the  parties  had  an  interview,  plaintiff  claiming  that  he  had  paid  tlie 

89  In  Moore  v.  Vestry  of  Fulham,  [1895]  1  Q.  B.  D.  399,  the  defendants  issued 
a  summons  against  the  plaintiff  under  the  Metropolis  Manaj^enient,  Acts,  to 
recover  his  proportion  of  certain  street  improvement  exi)enses  alleged  to  be 
■due  from  him  as  the  owner  of  premises  abutting  on  a  street  in  the  district 
of  the  defendants.  The  plaintiff,  in  the  mistaken  belief  that  his  proi>erty 
abutted  upon  the  street,  paid  the  money  before  the  summons  was  heard,  and 
the  sunnnons  was  withdrawn.  The  plaintiff  having  discovered  his  mistake, 
brought  an  action  to  recover  from  the  defendants  the  amount  paid  by  him. 
Held  that"  the  money,  having  been  paid  under  compulrfioa  of  legal  process, 
could  not  be  recovered  back. 


536  BENEFITS   CONFERRED   UNDER   COMPULSION  (Cll.  5 

money  in  October,  1863,  and  the  defendants  denying  it.  The  matter 
was  arranged  by  the  plaintiff  paying  the  principal  of  the  account  claim- 
ed to  be  due  by  the  defendants,  the  latter  throwing  off  the  interest. 
Plaintiff  claims  that  he  notified  them  at  the  time  of  payment  that  he 
should  get  it  back  if  he  could;  the  defendants,  on  the  other  hand, 
claiming,  and  one  of  them  testifying,  that  after  the  explanations  which 
were  made  to  him,  "the  plaintiff  appeared  satisfied"  with  the  arrange- 
ment, and  that  it  was  all  right,  and  that  he  had  done  wrong  in  not 
answering  our  communications,  none  of  which  had  been  replied  to  for 
over  two  years ;"  that  the  plaintiff  "confessed  that  he  thought  defend- 
ants (Lord  &  Smith)  were  acting  in  good  faith,  and  under  the  circum- 
stances, they  could  not  do  otherwise  than  to  try  and  enforce  collection 
of  their  claim." 

Under  the  testimony  and  instructions,  the  jury  found  a  verdict  for 
the  plaintiff  for  $180,  with  six  per  cent,  interest  from  May  12,  1865. 

Motion  for  new  trial  being  overruled,  defendants  excepted  and  ap- 
peal. 

Dillon,  J.***  After  stating  the  nature  of  the  action,  the  court  in- 
structed the  jury  that  "the  first  question  for  tliem  to  determine  is,  was 
the  plaintiff  indebted  to  defendants  in  the  sum  of  $174.91,  at  the  time 
defendants  brought  their  attachment  suit  against  plaintiff,  as  alleged?" 
The  court,  after  alluding  to  the  circumstances  proper  for  the  jury  to 
consider  in  deciding  this  question,  adds :  "Weighing  all  the  testimony 
and  circumstances  carefully,  you  will  determine  whether  plaintiff  had 
paid  his  account  in  full,  to  the  defendants  before  the  commencement 
of  the  said  attachment  suit.  If  you  find  he  had  paid  the  account  in 
full,  and  afterward  defendants  brought  suit  by  attachment  and  re- 
covered it  again,  you  will  find  for  the  plaintiff  a  verdict  for  the  amount 
so  paid  by  him.  But  if  you  find  plaintiff  had  not  paid  the  account  of 
defendants  before  the  attachment  suit  and  the  alleged  second  payment, 
you  should  find  for  defendants."  The  foregoing  portion  of  the  charge 
was  not  excepted  to,  but  that  which  follows  was  excepted  to  by  the 
defendants. 

"Ordinarily,"  continues  the  court's  charge,  "if  a  man  pays  money 
on  an  account  against  him,  the  law  presumes  that  he  owes  the  same, 
and  will  not  allow  him  to  recover  it  again,  unless  paid  by  accident  or 
mistake;  but  if  he  pays  such  account  after  being  sued  thereon,  in  a 
state  foreign  to  his  residence,  by  the  extraordinary  process  of  attach- 
ment, and  to  obtain  a  release  of  his  property  and  under  protest  that 
the  account  is  unjust  because  it  has  already  been  paid,  it  is  paid  un- 
der such  legal  compulsion  that  no  presumption  arises  against  the  per- 
son so  paying  under  protest." 

There  was  no  evidence  tending  to  show  actual  fraud  or  intentional 
bad  faith  in  either  plaintiff  or  defendants. 

40  The  statement  of  facts  is  abridged,  and  a  portion  of  the  opinion  is  omit- 
ted. 


Sec.  3)  COMPULSION   THROUGH    LEGAL   PROCEEDINGS  537 

The  jury  must  have  found  as  a  matter  of  fact,  that  the  account  had 
been  paid  by  the  plaintiff  prior  to  the  attachment  suit.  As  an  original 
question,  the  correctness  of  this  finding  is  by  no  means  clear,  but  the 
evidence  on  this  point  was  conflicting,  so  much  so,  that  we  would  not 
be  warranted  in  interfering,  upon  this  ground  alone,  with  the  verdict. 

The  judgment  below  must  therefore  stand,  if  the  charge  of  the  court 
above  quoted,  was,  under  the  circumstances,  correct. 

Taking  the  charge  together,  and  viewing  it  as  the  jury  would  doubt- 
less view  it,  it  laid  down  this  principle  of  law,  to  wit:  If  an  alleged 
debtor  is  sued  in  a  State  other  than  the  one  in  which  he  resides,  and 
his  property  is  attached,  this,  without  more,  and  even  if  the  attachment 
suit  is  brought  in  good  faith,  will  justify  such  alleged  debtor,  though 
he  knew  all  the  facts,  in  paying  the  amount  claimed,  and  if  he  does 
so  under  protest,  he  may  recover  it  back  in  the  courts  of  his  own  State, 
if  he  can  show  that  in  point  of  fact  the  debt  had  before  been  paid,  or 
was  not  just. 

To  this  extent  the  law  does  not  go.  To  justify  recovering  back 
money  paid,  when  all  the  facts  were  known  to  the  party  paying,  such 
payment  must  not  have  been  simply  an  unwilling  payment,  but  a  com- 
pulsory one,  and  the  compulsion  must  have  been  illegal,  unjust  or  op- 
pressive.'*^ 

Now,  is  it  such  a  compulsion  merely  to  sue  a  man  by  attachment  in 
a  State  foreign  to  his  residence?  We  think  not.  In  this  case  the  al- 
leged debt  was  contracted  in  Illinois,  and  the  admitted  payments  made 
on  the  account  were  paid  in  or  sent  to  Chicago,  and  it  would  probably 
be  fair  to  infer  that  the  understanding  of  the  parties  was  that  payment 
should  be  made  to  defendants  at  the  place  where  they  extended  the 
credit. 

Let  us  test  the  principle  laid  down  in  the  court's  charge. 

If  I  am  sued  in  my  own  State,  without  attachment,  and  know  the 
claim  is  unfounded  and  yet  pay  the  money,  I  cannot  recover  it  back 
although  I  may,  at  the  time  of  payment,  have  said,  I  paid  it  under 
protest.  And  if  I  am  sued  by  attachment,  the  result  must  be  the  same, 
if  the  attachment  is  the  only  circumstance  relied  upon  to  make  the 
payment  a  compulsory  one.  And  why?  Because  my  adversary  in  ei- 
ther case,  has  made  use  of  no  unjust  or  illegal  means  to  enforce  his 
claim,  or  pretended  claim  against  me.     It  is  my  duty  to  meet  him  in 

*i  In  Benson  v.  Monroe  (1851)  7  Cush.  (Mass.)  125,  54  Am.  Dec.  716,  the  court, 
speaking  tiirough  Metcalfe,  J.,  said:  "It  is  an  establislicd  rule  of  law  that  if 
a  party,  with  a  full  knowledge  of  the  facts,  voluntarily  pays  a  demand  un- 
justly made  on  him,  and  attempted  to  be  enforced  by  legal  proceedings,  he 
cannot  recover  back  the  money  as  paid  by  compulsion,  unless  there  be  fraud 
in  the  party  enforcing  the  claim  and  a  knowledge  that  the  claim  is  unjust. 
And  the  case  is  not  altered  by  the  fact  that  the  party  so  paying  protests  tluit 
he  shall  bring  an  action  to  recover  tlie  money  back.  He  has  an  opportunity 
in  the  first  instance  to  contest  the  claim  at  law.  He  has,  or  may  have,  a  day 
in  court ;  he  may  plead  and  make  proof  that  the  claim  on  him  is  such  as  he 
is  not  bound  to  pay." 

See,  also,  Turner  v.  Barber  (1901)  66  N.  J.  Law,  496,  49  Atl.  676. 


538  BENEFITS   CONFERRED   UNDER   COMPULSION  (Ch.  5 

limine,  and  litigate  and  settle  the  question  of  my  indebtedness.  It  is 
for  this  purpose  that  courts  are  instituted.  I  cannot  pay  the  amount, 
and  by  simply  saying,  I  do  so  under  protest,  afterward  re-open  the 
question.  When  one  pays  money  on  an  alleged  claim  against  him,  he 
is  forever  concluded  from  saying  he  did  not  owe  it,  if  he  paid  under 
no  mistake  of  fact,  and  if  the  party  receiving  it  made  use  of  no  illegal 
means  to  coerce  the  payment.  Now,  these  principles  of  the  law  are 
not  varied  by  the  simple  circumstance  that  one  is  sued  in  a  State  for- 
eign to  his  residence.  The  defendants,  by  the  law  of  Illinois,  in  which 
State  they  resided,  and  in  which  plaintiff  contracted  the  account,  had 
a  right,  if  they  could  get  jurisdiction,  to  sue  the  plaintiff  in  that  State, 
and  he  being  a  non-resident,  the  laws  of  tliat  State  gave  them  a  right 
to  an  attachment  against  his  property  found  within  the  jurisdiction. 
In  thus  suing,  therefore,  they  made  use  of  no  remedy  which  the  law 
did  not  allow ;  and  it  will  not  do  to  hold  that  a  payment,  secured  by 
none  but  the  means  provided  by  the  law  itself,  is  a  compulsory  or 
coerced  one,  there  being  no  element  of  fraud  or  other  ingredient  of 
oppression  in  the  case. 

The  plaintiff  knew  as  well  when  he  paid  the  money  to  the  defend- 
ants. May  12,  1865,  as  he  did  a  few  days  afterward,  when  he  brought 
this  suit  to  recover  it  back,  that  he  did  not  owe  it.  He  gained  no  new 
knowledge  meantime ;  nor,  indeed,  any  new  evidence,  such  as  a  lost 
receipt  for  the  amount.  We  must  presume  that  the  tribunals  of  our 
sister  State  would  have  fairly  and  cori'ectly  adjudicated  the  contro- 
versy between  the  parties.  See  how  the  principles  asserted  in  the 
court's  charge  would  work.  Here  is  a  dispute  between  parties  resid- 
ing in  different  States.  One  of  the  parties  is  found  in  Illinois,  and  tbe 
courts  of  that  State  acquire,  in  due  form  of  law,  jurisdiction  over  his 
property  and  his  person.  He  says :  "I  will  not  go  to  trial  here ;  I 
will  pay  under  protest,  and  then  sue  in  my  own  State  to  get  back 
the  amount."  He  does  pay  under  protest,  and  returns  to  Iowa  and 
sues  the  other  party  in  that  State  by  attachment.  This  party  says,  "I 
will  not  go  to  trial  in  Iowa,  and  I  will  also  pay  under  protest,  and 
afterward  sue  in  my  own  State  to  get  back  the  amount."  A  principle 
working  such  results  cannot  be  well  founded. 

What  we  hold  is,  that  the  mere  fact  (there  being  no  element  of  fraud 
or  other  means  of  oppression)  that  a  party  is  sued  by  attachment  in 
the  State  where  the  plaintiff  resides,  but  which  is  foreign  to  the  resi- 
dence of  the  defendant,  will  not,  without  more,  make  the  payment 
of  money  compulsory  in  such  a  sense  that  it  can  be  recovered  back, 
if  paid  under  protest  and  if  it  can"  be  shown  not  to  be  due. 

We  find,  upon  looking  into  the  adjudicated  cases,  that  the  views 
above  expressed  are  well  sustained.     *     *     * 

The  judgment  below  is  reversed  and  tlie  cause  is  remanded. 


Sec.  3)  COMPULSION  THROUGH   LEGAL  PROCEEDINGS  539 


CHANDLER  v.  SANGER. 

(Supreme  Judicial  Court  of  Massachusetts,  1874.     114  Mass.  364,  19  Am. 

Hep.  367.) 

Contract  for  money  had  and  received.  At  the  trial  in  the  Superior 
Court,  before  Rockwell,  J.,  the  plaintiff,  in  opening  his  case,  stated  that 
he  expected  to  prove  that  the  plaintiff  was  a  dealer  in  ice,  and  fur- 
nished ice  each  week  day  to  parties  in  Boston,  under  contracts  to 
furnish  a  certain  amount  daily,  upon  all  week  days;  that  his  custom 
was  to  have  his  carts  loaded  by  twelve  o'clock  on  Sunday  night,  in 
order  to  start  early  Monday  morning;  that  any  failure  on  the  part 
of  the  plaintiff  to  furnish  his  customers  with  ice  on  Monday  would  be 
a  great  injury  to  him;  that  Monday  morning,  July  12,  1869,  he  had 
standing  in  his  sheds  at  Brighton,  adjoining  his  ice-house,  five  heavy 
two-horse  teams  loaded  with  ice,  ready  to  start  for  Boston  before 
light;  that  the  defendant  Sanger  held  his  promissory  note  and 
had  proved  it  against  his  estate  in  insolvency;  that  in  the  insolvency 
proceeding  he  had  obtained  his  discharge;  that  the  defendants  knew 
these  facts;  that  the  defendant  Sanger  and  the  other  defendant  who 
was  an  attorney  at  law,  brought  an  action  on  this  promissory  note, 
under  circumstances  which  would  satisfy  the  jury  that  the  action  was 
commenced  and  carried  on  by  them  fraudulently,  with  the  purpose 
of  extorting  money  from  the  plaintiff  by  duress,  under  color  of  legal 
process ;  that  in  pursuance  of  this  purpose,  they  went  about  two  o'clock 
on  Monday  morning  with  a  writ  in  the  hands  of  an  officer  and  made 
an  attachment  of  the  carts,  horses  and  harnesses ;  that  the  attorney 
at  law,  who  had  been  with  the  officer  in  making  the  attachment,  went 
to  the  plaintiff's  house  and  informed  him  of  the  attachment,  and  told 
him  that  none  of  the  property  so  attached  could  go  to  Boston  unless 
the  claim  should  first  be  settled  by  the  payment  of  $300;  that  the 
plaintiff  told  the  attorney  that  he  did  not  owe  anything,  and  said  he 
would  dissolve  the  attachment  by  giving  a  bond ;  that  the  attorney  then 
told  him  that  it  would  take  three  days  to  dissolve  it,  and  that  for  that 
time  the  property  would  be  held  under  it,  and  that  his  discharge  in 
insolvency  did  not  cut  off  the  claim;  that  the  plaintiff  believed  these 
statements,  and  being  ignorant  of  the  method  of  dissolving  attacli- 
ments  and  being  in  fear  of  great  loss  in  his  business,  to  reUeve  the 
property  from  attachment,  he  paid  the  $300  to  the  attorney  under 
protest,  stating  that  he  should  claim  and  enforce  his  rights,  and  re- 
cover back  the  money. 

The  presiding  judge  being  of  the  opinion  that  these  facts,  if  proved, 
would  not  sustain  the  action,  so  ruled;  whereupon,  by  consent  of  the 
parties,  he  reported  the  case  to  this  court  for  their  decision.  It  was 
agreed  that  if  the  court  should  be  of  opinion  that  these  facts,  if  proved, 
were  sufficient  to  sustain  the  action,  then  it  was  to  stand  for  trial; 
otherwise  judgment  was  to  be  entered  for  the  defendants. 


540  BENEFITS  CONFERRED  UNDER  COMPULSION         (Ch.  5 

Gray,  J.  This  is  not  an  action  of  tort,  to  recover  damages  for  ma- 
licious prosecution,  or  abuse  of  legal  process,  but  an  action  of  con- 
tract, in  the  nature  of  assumpsit,  for  money  had  and  received  by  the 
defendants,  which  they  have  no  legal  or  equitable  right  to  retain  as 
against  the  plaintiff.  Although  the  process  sued  out  for  tlie  defendant 
was  in  due  form,  yet  if,  as  was  offered  to  be  proved  at  the  trial,  he 
fraudulently,  and  knowing  that  he  had  no  just  claim  against  the  plain- 
tiff, arrested  his  body  or  seized  his  goods  thereon,  for  the  purpose  of 
extorting  money  from  him,  then,  according  to  all  the  authorities,  the 
payment  of  money  by  the  plaintiff,  in  order  to  release  himself  or  his 
goods  from  such  fraudulent  and  wrongful  detention,  was  not  volun- 
tary, but  by  compulsion ;  and  the  money  so  paid  may  be  recovered 
back,  without  proof  of  such  a  termination  of  the  former  suit  as  would 
be  necessary  to  maintain  an  action  for  malicious  prosecution.  Wat- 
kins  V.  Baird,  6  Mass.  506,  4  Am.  Dec.  170;  Shaw,  C.  J.,  in  Preston  v. 
Boston,  12  Pick.  7,  14;  Benson  v.  Monroe,  7  Cush.  125,  131,  54 
Am.  Dec.  716;  Carew  v.  Rutherford,  106  Mass.  1,  11  et  seq.,  8  Am. 
Rep.  287 ;  Richardson  v.  Duncan,  3  N.  H.  508 ;  Sartwell  v.  Horton, 
28  Vt.  370;  Gibson,  C.  J.,  in  Colwell  v.  Peden,  3  Watts  (Pa.)  327, 
328;  Cadaval  v.  Collins,  4  A.  &  E.  858;  s.  c.  6  Nev.  &  Man.  324; 
Parke,  B.,  in  Oates  v.  Hudson,  6  Exch.  346,  348,  and  in  Parker  v. 
Bristol  &  Exeter  Railway  Co.,  Id.  702,  705. 

New  trial  ordered.** 


JOANNIN  V.  OGILVIE. 

(Supreme  Court  of  Minnesota,  1S92.    49  Minn.  564,  52  N.  W.  217,  16  L.  R.  A, 
376,  32  Am.  St.  Rep.  5S1.) 

Appeal  by  plaintiffs,  George  Joannin  and  Christian  O.  Hansen,  from 
a  judgment  of  the  District  Court  of  St.  Louis  County,  Steams,  J. 

This  action  was  brought  upon  a  note  for  $497,  and  interest,  dated 
May  1,  1891,  payable  to  plaintiff's  order  fifteen  days  thereafter.  It 
was  made  by  defendant  David  Ogilvie,  and  indorsed  for  his  accom- 
modation by  F.  H.  Barnard,  the  other  defendant.  The  note  was  given 
for  the  debt  of  Ogilvie,  and  he  delivered  to  plaintiffs,  as  security  for 
its  payment,  thirty  shares  of  the  capital  stock  of  the  Northwestern 
Investment  Company,  worth  $300,  and  two  shares  of  the  capital  stock 
of  the  St.  Louis  Investment  Company,  worth  $200. 

By  his  answer,  Ogilvie  admitted  his  liability  on  the  note,  and  stated 
that  Barnard  was  his  surety,  and  for  counterclaim  alleged  that  on 
January  31,  1890,  he  owned  lots  Nos.  93  and  95  in  Block  47  in  Du- 
luth  proper,  and  had  erected  buildings  thereon ;  that  he  bought  doors, 
sash,  and  other  goods  of  one  A.  H.  Thompson,  a  retail  dealer,  and 
paid  him  for  them,  and  used  them  in  the  buildings.     Thompson  had 

42  Compare  Weber  v.  Kirkendall  (1894)  39  Neb.  193,  57  N.  W.  1026. 


Sec.  3)  COMPULSION  THROUGH   LEGAL   PROCEEDINGS  541 

previously  purchased  these  goods  with  others  from  plaintiffs,  the  manu- 
facturers, to  sell  again  at  retail  to  his  customers.  Thompson  was  in- 
debted to  plaintiffs  on  account  for  goods  so  bought  of  them,  but  Ogil- 
vie  did  not  know  this. 

On  that  day  plaintiffs  made  and  filed  for  record  a  lien  statement, 
claiming  to  be  due  them  from  Thompson  $682.50,  and  that  he  was  a 
contractor  with  Ogilvie  to  furnish  material  for  the  buildings  on  the 
lots.  This  claim  was  incorrect  and  the  lien  invalid.  Ogilvie  was 
largely  indebted,  and  pressed  for  money,  and  was  negotiating  for  a 
loan  of  $15,000,  to  be  secured  by  his  mortgage  on  this  real  estate. 
The  lenders  refused  to  make  the  loan  unless  this  lien  was  removed. 
Plaintiffs  refused  to  discharge  it  of  record  unless  Ogilvie  paid  Thomp- 
son's debt  to  them.  He  paid  it  under  protest  March  19,  1890,  and  in 
this  action  asked  judgment  against  plaintiffs  for  the  amount  so  paid, 
(after  deducting  the  amount  due  them  on  the  note)  and  for  return 
of  his  stocks. 

The  action  was  tried  September  24,  1890,  without  a  jury.  The  court 
found  the  payment  of  Ogilvie  to  plaintiffs  was  made  under  duress, 
and  directed  judgment  as  prayed  in  his  answer.  It  was  so  entered, 
and  plaintiffs  brought  this  appeal. 

Mitchell,  J.  The  findings  in  this  case  are  so  specific  as  to  con- 
stitute a  sufficient  statement  of  the  facts,  and  an  examination  of  the 
record  satisfies  us  that,  on  all  material  points,  they  are  fully  justified 
by  the  evidence. 

That  plaintiffs'  claim  of  a  lien  on  the  land  of  the  defendant  Ogilvie 
was  wholly  unfounded  is  conceded.  Merriman  v.  Jones,  43  Minn. 
29,  44  N.  W.  526.  Therefore  the  only  question  is  whether  the  payment 
of  the  claim  was  voluntary,  or  whether  it  was  made  under  such  com- 
pulsion or  constraint  that  it  is  to  be  deemed  in  law  involuntary,  so 
that  the  money  may  be  recovered  back. 

In  examining  the  authorities  upon  the  question  as  to  what  pressure 
or  constraint  amounts  to  duress  justifying  the  avoiding  of  contracts 
made,  or  the  recovery  back  of  money  paid,  under  its  influence,  one  is 
forcibly  impressed  with  the  extreme  narrowness  of  the  old  common- 
law  rule  on  the  one  hand,  and  with  the  great  liberality  of  the  equity 
rule  on  the  other.  At  common  law,  "duress"  meant  only  duress  of 
the  person,  and  nothing  short  of  such  duress,  amounting  to  a  rea- 
sonable apprehension  of  imminent  danger  to  life,  limb,  or  liberty,  was 
sufficient  to  avoid  a  contract,  or  to  enable  a  party  to  recover  back 
money  paid.  But  courts  of  equity  would  unhesitatingly  set  aside 
contracts  whenever  there  was  imposition  or  oppression,  or  whenever 
the  extreme  necessity  of  the  party  was  such  as  to  overcome  his  free 
agency.  The  courts  of  law,  however,  gradually  extended  the  doctrine 
so  as  to  recognize  duress  of  property  as  a  sort  of  moral  duress,  which 
might,  equally  with  duress  of  the  person,  constitute  a  defense  to  a 
contract  induced  thereby,  or  entitle  a  party  to  recover  back  money  paid 
under  its  influence.     And  the  modern  authorities  generally  hold  that 


542  BENEFITS  CONFEKKKD  UNDER  COMPULSION.        (Cll.  5 

such  pressure  or  constraint  as  compels  a  man  to  go  against  his  will,  and 
virtually  takes  away  his  free  agency,  and  destroys  the  power  of  re- 
fusing to  comply  with  the  unlawful  demand  of  another,  will  con- 
stitute duress,  irrespective  of  the  manifestation  or  apprehension  of 
physical  force. 

The  rule  is  that  money  paid  voluntarily,  with  full  knowledge  of 
the  facts,  cannot  be  recovered  back.  If  a  man  chooses  to  give  away 
his  money,  or  to  take  his  chances  whether  he  is  giving  it  away  or  not, 
he  cannot  afterwards  change  his  mind ;  but  it  is  open  to  him  to 
show  that  he  supposed  the  facts  to  be  otherwise,  or  that  he  really  had 
no  choice.    Poll.  Cont.  556. 

In  Fargusson  v.  Winslow,  34  Minn.  384,  25  N.  W.  942,  this  court 
held  that  "when  one  in  order  to  recover  possession  of  his  personal 
property  from  another,  who  unjustly  detains  it,  is  compelled  to  pay 
money  which  is  demanded  as  a  condition  of  delivery,  such  payment, 
when  made  under  protest,  is  deemed  to  have  been  made  compulsorily 
or  under  duress,  and  may  be  recovered  back,  at  least  when  such 
detention  is  attended  with  circumstances  of  hardship  or  of  serious  in- 
convenience to  the  owner."  Again,  in  De  Graff  v.  Ramsey  Co.,  46 
Minn.  319,  48  N.  W.  1135,  it  was  said:  "There  is  a  class  of  cases 
where,  although  there  be  a  legal  remedy,  a  person's  situation,  or  the  sit- 
uation of  his  property,  is  such  that  the  legal  remedy  would  not  be  ade- 
quate to  protect  him  from  irreparable  prejudice ;  where  the  circumstanc- 
es and  the  necessity  to  protect  himself  or  his  property  otherwise  than 
by  resort  to  the  legal  remedy  may  operate  as  a  stress  or  coercion  upon 
him  to  comply  with  the  illegal  demand.  In  such  cases,  his  act  will  be 
deemed  to  have  been  done  under  duress,  and  not  of  his  free  will." 
Fargusson  v.  Winslow,  supra ;  State  v.  Nelson,  41  Minn.  25,  42  N.  W. 
548,  4  L.  R.  A.  300;  and  Mearkle  v.  County  of  Hennepin,  44  Minn. 
546,  47  N.  W.  165, — are  instances  where  the  danger  of  irreparable 
or  serious  prejudice  was  considered  so  great  and  the  legal  remedy 
so  inadequate  as  to  practically  leave  the  party  no  choice  but  to  com- 
ply with  the  illegal  demand,  and  hence  to  render  the  payment  invol- 
untary. It  may  be  stated  generally  that  whenever  the  demandant 
is  in  position  to  seize  or  detain  the  property  of  him  against  whom  the 
claim  is  made  without  a  resort  to  judicial  proceedings,  in  which  the 
party  may  plead,  offer  proof,  and  contest  the  validity  of  the  claim,  pay- 
ment under  protest,  to  recover  or  retain  the  property,  will  be  con- 
sidered as  made  under  compulsion,  and  the  money  can  be  recovered 
back,  at  least  where  a  failure  to  get  or  retain  immediate  possession 
and  control  of  the  property  would  be  attended  with  serious  loss  or 
great  inconvenience.  Navigation  Co.  v.  Tappan,  16  Blatchf.  297,  Fed. 
Cas.  No.  10,405. 

As  was  said  as  long  ago  as  Astley  v.  Reynolds,  2  Strange,  915, 
"plaintiff  might  have  such  an  immediate  want  of  his  goods  that  an 
action  of  trover  would  not  do  his  business.  Where  the  rule  volenti 
non  fit  injuria  is  applied,  it  must  be  when  the  party  has  his  freedom 


Sec.  3)  COMPULSION  THROUGH   LEGAL  PROCEEDINGS  543 

of  exercising  his  will,  which  this  man  had  not.    We  must  take  it  he 
paid  the  money  relying  on  his  legal  remedy  to  get  it  back  again." 

It  has  been  said  that,  to  constitute  a  payment  under  duress,  "there 
must  be  some  actual  or  threatened  exercise  of  power  possessed,  or 
supposed  to  be  possessed,  by  the  party  exacting  or  receiving  the  pay- 
ment, over  the  person  or  property  of  the  party  making  the  payment, 
from  which  the  latter  has  no  other  means  of  immediate  relief  than  by 
advancing  the  money."  Brumagim  v.  Tillinghast,  18  Cal.  265,  79 
Am.  Dec.  176;   Radich  v.  Hutchins,  95  U.  S.  210,  24  L.  Ed.  409. 

Beyond  these  and  similar  statements  of  general  principles,  the 
courts  have  not  attempted  to  lay  down  any  definite  and  exact  rule 
of  universal  application  by  which  to  determine  whether  a  payment  is 
voluntary  or  involuntary.  From  the  very  nature  of  the  subject,  thip. 
cannot  be  done,  as  each  case  must  depend  somewhat  upon  its  own 
peculiar  facts.  The  real  and  ultimate  fact  to  be  determined  in  every 
case  is  whether  or  not  the  party  really  had  a  choice, — whether  "he 
had  his  freedom  of  exercising  his  will."  The  courts,  however,  by  a 
gradual  process  of  judicial  exclusion  and  inclusion,  have  arranged 
certain  classes  of  cases  on  one  or  the  other  side  of  the  line.  P*or 
example,  payment  of  an  illegal  tax,  in  order  to  prevent  issuing  a  v  ar- 
rant of  distress  in  the  nature  of  an  execution,  and  upon  which  the 
party  has  no  day  in  court  or  opportunity  to  defend,  is  held  not  vol- 
untary. Such  were  the  cases  of  Board,  etc.,  v.  Parker,  7  Minn.  267, 
(Gil.  207,)  and  Preston  v.  Boston,  12  Pick.  7.  So,  also,  the  payment 
of  an  illegal  demand  in  order  to  obtain  possession  of  personal  prop- 
erty detained  otherwise  than  by  judicial  process,  and  where  the  ir.ime- 
diate  want  of  the  property  was  so  urgent  that  an  action  of  replevin 
"would  not  do  the  owner's  business."  Such  was  the  case  of  Fsrgus- 
son  v.  Winslow,  supra.  Also  the  payment  of  an  illegal  tax  in  order 
to  get  a  deed  on  record,  as  in  the  case  of  State  v.  Nelson,  fupra; 
or  the  payment  of  illegal  fees  in  order  to  secure  the  exercise  of  its 
jurisdiction  by  the  probate  court  in  the  administration  and  settkment 
of  an  estate,  where  the  delay  was  liable  to  result  in  serious  loss,  as  in 
the  case  of  Mearkle  v.  County  of  Hennepin,  supra. 

On  the  other  hand,  it  is  well  settled  that  the  mere  refusal  of  9  party 
to  pay  a  debt  or  to  perform  a  contract  is  not  duress,  so  as  to  avoid 
a  contract  procured  by  means  of  such  refusal,  although  the  other  par- 
ty was  influenced  in  entering  into  it  by  his  financial  necessities.  Such 
was  the  case  of  Cable  v.  Foley,  45  Minn.  421,  47  N.  W.  1135;  also 
Miller  v.  Miller,  68  Pa.  486;  Hackley  v.  Headley,  45  Mich.  569,  8  N. 
W.  511;  Goebel  v.  Linn,  47  Mich.  489,  11  N.  W.  284,  41  Am.  Rep. 
723;  and  Silliman  v.  U.  S.,  101  U.  S.  465,  25  L.  Ed.  987,— cited  by 
plaintiflf.  It  will  be  noted  that  in  the  last  case  referred  to  the  party 
entered  into  the  new  contract,  not  for  the  purpose  of  obtaining  pos- 
session of  his  property,  (the  barges,)  but  to  secure  payment  of  money 
due  him  from  the  government. 


544  BENEFITS  CONFERRED   UNDER  COMPULSION  (Ch.  5 

So,  also,  the  fact  that  a  lawsuit  is  threatened  or  property  has  been 
seized  on  legal  process  in  judicial  proceedings  to  enforce  an  illegal 
demand  will  not  render  its  payment  compulsory,  at  least  in  the  ab- 
sence of  fraud  on  part  of  the  demandant  in  resorting  to  legal  process 
for  the  purpose  of  extorting  payment  of  a  claim  which  he  knows 
to  be  unjust.  The  ground  upon  which  this  doctrine  rests  is  that  the 
party  has  an  opportunity  to  plead  and  test  the  legality  of  the  claim 
in  the  very  proceedings  in  which  his  property  is  seized.  Under  this 
class  fall  the  following  cases  cited  by  plaintiffs :  Forbes  v.  Appleton, 
5  Cush.  115;  Benson  v.  Monroe,  7  Cush.  125,  54  Am.  Dec.  716;  Tay- 
lor V.  Board  of  Health,  31  Pa.  73,  72  Am.  Dec.  724;  Navigation  Co. 
V.  Tappan,  supra. 

Also  the  payment  of  an  illegal  license  to  follow  a  particular  business, 
where  the  party  could  not  have  been  subjected  to  any  penalties  with- 
out judicial  proceedings  to  enforce  them,  in  which  he  would  have  an 
opportunity  to  contest,  the  legality  of  the  license,  or  where  the  li- 
cense was  exacted  for  a  business  the  pursuit  of  which  was  not  a 
natural  right,  but  a  mere  privilege,  which  might  be  granted  or  with- 
held, at  the  option  of  the  state.  To  this  class  belong  the  following 
cases  cited  by  plaintiffs :  Cook  v.  Boston,  9  Allen,  393 ;  Emery  v. 
Lowell,  127  Mass.  138;  Mays  v.  Cincinnati,  1  Ohio  St.  268;  Custin 
v.  City  of  Viroqua,  67  Wis.  314,  30  N.  W.  515. 

The  same  has  been  held  as  to  money  paid  under  threats  of  distress 
for  rent,  in  the  absence  of  fraud  or  any  other  fact,  except  that  no 
rent  was  due.  The  theory  seems  to  be  that  the  party's  remedy  is  to 
replevin,  and  try  the  question  of  liability  at  law.  Such  was  the  case 
of  Colwell  V.  Peden,  3  Watts  (Pa.)  327,  also  cited  by  plaintiffs. 

But  all  these  cases  in  which  the  payment  was  held  voluntary  are 
clearly  distinguishable  from  the  case  at  bar.  The  distinguishing  and 
ruling  fact  in  this  case  was  the  active  interference  of  plaintiffs  with 
defendant's  property  by  filing  the  claim  for  a  lien,  which  effectually 
prevented  the  defendant  from  using  it  for  the  purposes  for  which  he 
had   immediate   and  imperative   need. 

It  was  this  active  interference  with  the  property,  and  not  the  neces- 
sitous financial  condition  of  the  defendant,  which  constituted  the  con- 
trolling fact.  The  latter  was  only  one,  and  by  no  means  the  most 
important,  of  the  circumstances  in  the  case.  Counsel  for  plaintiffs 
seems  to  assume  that  the  filing  of  the  claim  for  a  lien  was  the  com- 
mencement of  a  judicial  proceeding  for  its  enforcement,  and  there- 
fore, within  the  doctrine  of  cases  cited  by  him,  that  the  subsequent 
payment  of  the  claim  was  voluntary,  because  defendant  might  have 
interposed  his  defense  in  these  proceedings.  But  this  is  clearly  wrong. 
Filing  a  lien  is  in  no  sense  the  commencement  of  judicial  proceed- 
ings. The  only  remedies  open  to  defendant  were  either  to  commence 
a  suit  himself  to  determine  the  validity  of  plaintiffs'  claim,  or  wait,  per- 
haps a  year,  until  the  latter  should  commence  a  suit  to  enforce  it. 
But  with  a  large  indebtedness  hanging  over  him,  an  overdue  mort- 


Sec.  3)  COMPULSION  THROUGH   LEGAL   PROCEEDINGS  545 

gage  on  this  very  property  upon  which  foreclosure  was  threatened, 
with  no  means  to  pay  except  money  which  he  had  arranged  to  bor- 
row on  a  new  mortgage  which  he  had  executed  on  this  same  prop- 
erty, $13,000  of  which  was  withheld  and  could  not  be  obtained  until 
plaintiffs'  claim  of  lien  had  been  discharged  of  record,  it  is  very  evident 
that  neither  of  the  remedies  suggested  "would  do  defendant's  busi- 
ness." He  was  so  situated  that  he  could  neither  go  backward  nor 
forward.  He  had  practically  no  choice  but  to  submit  to  plaintiffs' 
demand.  Had  it  been  goods  and  chattels  which  plaintiffs  had  with- 
held under  like  circumstances,  there  would  be  no  doubt,  under  the 
doctrine  of  Fargusson  v.  Winslow,  supra,  but  that  the  payment  would 
be  held  to  have  been  made  under  duress.  But  while  filing  the  lien 
did  not  interfere  with  defendant's  possession  of  the  land,  yet  it  as 
effectually  deprived  him  of  the  use  of  it  for  the  purposes  for  which 
he  needed  it  as  would  withholding  the  possession  of  chattel  property. 
It  has  been  sometimes  said  that  there  can  be  no  such  thing  as  duress 
with  respect  to  real  property,  so  as  to  render  a  payment  of  money  on 
account  of  it  involuntary.  But  this  is  not  sustained  by  either  principle 
or  authority.  In  view  of  the  immovable  character  of  real  property, 
duress  with  respect  to  it  is  not  likely  to  occur  as  often  as  with  respect 
to  goods  and  chattels.  But  the  question  in  all  cases  is,  was  the  pay- 
ment voluntary?  and  for  the  purpose  of  determining  that  question 
there  is  no  difference  whether  the  duress  be  of  goods  and  chattels, 
or  of  real  property,  or  of  the  person.  Fraser  v.  Pendlebury,  31  Law 
J.  C.  P.  1 ;  Pemberton  v.  Williams,  87  111.  15 ;  Close  v.  Phipps,  7  Man. 
&  G.  586 ;  White  v.  Heylman,  34  Pa.  142 ;   State  v.  Nelson,  supra. 

Considerable  stress  is  placed  upon  defendant's  silence  and  apparent 
acquiescence  for  a  considerable  time  after  he  paid  plaintiffs'  claim. 
This  might  have  some  bearing  upon  the  question  whether  the  payment 
was  voluntary  or  involuntary;  but  if  it  was  in  fact  the  latter,  and 
a  cause  of  action  to  recover  back  the  money  accrued  to  defendant, 
it  would  be  neither  waived  nor  barred  by  his  subsequent  silence  or 
delay  in  asserting  his  right  of  action.  ' 
Judgment  affirmed.*^ 

43  In  First  Nat.  Bank  v.  Sargeant  (1902)  65  Nob.  594,  91  N.  W.  595,  59  L.  R. 
A.  296,  one  Sargeant  had  conveyed  certain  .land  to  a  bank  by  deed  ahsolute,  as 
security.  The  bank  thereafter  claiiuing  absolute  ownership  in  the  land,  and 
denying  Sargeant's  equity  therein,  refused  to  consent  to  a  sale  thereof  by 
Sargeant.  Sargeant,  being  under  necessity  of  raising  money  at  once  to  moot 
certain  obligations,  paid  a  sum  largely  in  excess  of  what  was  due  the  bank, 
in  order  to  obtain  a  deed  of  the  land  so  that  he  might  complete  the  sal« 
thereof.  The  court  allowed  a  recovery  of  the  amount  of  the  overpayment, 
saj'ing:  "The  duress  complained  of  rests,  we  apprehend,  in  the  unfortunate 
financial  condition  in  which  the  plaintiff  found  himself,  coupled  with  the 
control  over  the  legal  title  to  the  land  and  apparent  ownership  thereof  which 
the  bank  had  acquired,  and  its  power  to  prevent  a  voluntary  disjiosal  by  the 
plaintiff  to  meet  his  just  indebtedness  without  first  obtaining  the  consent  of 
the  bank  and  complying  with  such  demands  as  it  might  impose  as  a  condition 
of  releasing  its  interest  and  title  to  the  property.  The  duress  relied  or  as 
Thuks.Quasi  Cont. — 35 


546  BENEFITS  CONFERRED   UNDER  COMPULSION  (Ch.  5 

VEREYCKEN  v.  VANDEN  BROOKS. 

(Supreme  Court  of  Michigan,  1S94.     102  Mich.  119,  60  N.  W.  6S7.) 

Error  to  circuit  court,  Bay  county ;   Cobb,  Judge. 

Assumpsit  by  Frank  Vereycken  against  Antoinette  Vanden  Brooks. 
There  was  a  judgment  for  plaintiff,  from  which  defendant  brings 
error. 

Montgomery,  J.  This  is  an  action  brought  to  recover  an  alleged 
overpayment  of  interest  upon  a  real-estate  mortgage  and  note.  April 
14,  1879,  plaintiff  gave  his  promissory  note  to  Antoinette  Vanden 
Brooks  of  $460,  with  interest  at  10  per  cent,  per  annum,  due  in  three 
years  from  its  date.    The  note  remained  unpaid. 

On  the  2d  of  August,  1885,  Vanden  Brooks  gave  the  plaintiff  a  writ- 
ten agreement,  as  follows :  "I,  Antoinette  Vanden  Brooks,  agree  to 
let  Frank  Vereycken  have  all  the  money  at  eight  per  cent.  A.  Vanden 
Brooks." 

The  note  remained  unpaid  until  September  18,  1891,  when  proceed- 
ings were  instituted  in  the  circuit  court,  in  chancery,  for  the  county 
of  Bay,  to  foreclose  the  mortgage,  and  subpoenas  were  served  on 
plaintiff.  On  the  same  day,  the  plaintiff  paid  the  amount  demanded, 
under  protest,  and  brought  this  suit  to  recover  the  excess,  which,  if 
the  agreement  to  reduce  interest  be  valid,  amounted  to  the  sum  re- 
covered in  the  court  below. 

Two  questions  are  presented  by  the  record :  First,  whether  the 
agreement  to  reduce  the  interest  was  based  upon  a  sufficient  con- 
sideration ;  and,  second,  whether  tiie  payment  of  the  excess  was,  with- 
in the  legal  definition  of  the  term,  "involuntary." 

We  think  the  written  memorandum  may  be  well  construed  to  be 
an  open  proposition  to  plaintiff  to  retain  the  money,  at  least  until  fur- 
ther demand,  at  the  rate  of  8  per  cent.,  and  that,  when  acted  upon, 
the  mortgagee  cannot  be  permitted  to  exact  a  greater  rate  of  in- 
terest. 

A  question  of  more  difficulty  is  whether  the  payment  was  an  invol- 
untary payment.  The  general  rule  is  that,  to  constitute  a  payment  in- 
voluntary, it  must  be  made  under  such  circumstances  as  precludes 
the  exercise  of  the  free  will  of  the  payor.  There  must  be  either 
duress  of  the  person  or  the  property.  Some  courts  have  held  that 
there  can  be  no  duress  of  real  property  which  remains  in  the  posses- 
grounds  of  relief,  if  existing,  consisted  not  so  much  in  threats  against  the 
defendant  or  duress  of  his  person  as  it  did  in  a  wrongful  and  unjust  exercise 
of  control  and  ownership  of  the  property  of  the  plaintiff,  being  the  real 
estate  to  which  it  held  the  legal  title,  and  apparently  the  right  of  disposal 
on  any  terms  it  saw  fit  to  impose,  or  of  withholding  the  land  from  sale  al- 
together, until  compelled  to  act  by  a  final  decree  in  a  proper  suit  brought  to 
try   and  determine  the  rights  of  the  respective   parties." 

But  see  Hipp  v.  Crenshaw  (1884)  &4  Iowa,  404,  20  N.  W.  492,  holding  that  a 
payment  of  a  judgment  in  order  to  relieve  land  of  the  lien  thereof  so  that  it 
might  be  mortgaged,  was  a  voluntary  payment. 


Sec.  3)  COMPULSION  THROUGH   LEGAL   PROCEEDINGS  547 

sion  of  the  payor,  but  most  courts  hold  the  contrary.  State  v.  Nelson, 
41  Minn.  25,  42  N.  W.  548,  4  L.  R.  A.  300;  Pemberton  v.  Williams,  87 
111.  15;  White  v.  Heylman,  34  Pa.  142;  Joannin  v.  Ogilvie,  49  Minn. 
564,  52  N.  W.  217,  16  L.  R.  A.  376,  32  Am.  St.  Rep.  581.  So  it  has 
been  held  that  if  the  mortgagee  of  land  require  that  the  mortgagor 
pay  more  than  is  legally  due,  for  the  purpose  of  preventing  a  fore- 
closure by  advertisement,  this  is  such  a  compulsory  payment  as  enti- 
tles the  party  to  sue  and  recover  back  tlie  excess.**  But  it  is  to  be  noted 
that  in  such  a  case  the  mortgagee,  by  his  own  act,  unaided  by  any 
process  of  court,  has  it  within  his  power  to  deprive  the  mortgagor 
of  his  title.  Such  was  not  the  case  here.  All  that  the  defendant 
had  done  was  to  file  a  bill  to  obtain  a  decree  of  the  court  fixing  the 
amount  due.  Before  any  decree  could  pass  against  the  present  plain- 
tiff, he  was  entitled  to  his  day  in  court.  .Under  these  circumstances,  we 
think  that  there  was  no  duress  of  property  such  as  the  law  recognizes. 
See  Forbes  v.  Appleton,  5  Cush.  115;  Benson  v.  Monroe,  7  Cush.  125, 
54  Am.  Dec.  716;  Taylor  v.  Board,  31  Pa.  71^,  72  Am.  Dec.  724; 
Oceanic  Steamship  Co.  v.  Tappan,  16  Blatchf.  296,  Fed.  Cas.  No. 
10,405 ;  Mariposa  Co.  v.  Bowman,  Deady,  228,  Fed.  Cas.  No.  9,089. 

It  follows  from  these  views  that  the  judgment  should  be  reversed, 
with  costs.* ° 


PRESTON  V.  CITY  OF  BOSTON. 

(Supreme  Judicial  Court  of  Massachusetts,  1S31.     12  Pick.  7.) 

Assumpsit  to  recover  $711.50,  money  had  and  received  to  the  use 
of  the  plaintiff,  being  the  amount  of  a  tax  assessed  upon  him  for 
the  year  1828,  for  his  poll  and  personal  estate,  and  by  him  paid  to 
the  treasurer  and  collector  of  the  city  of  Boston. 

The  plaintiff,  a  resident  of  Med  ford  owning  real  property  in  Bos- 
ton, was  taxed  by  that  city  not  only  on  such  real  estate,  the  taxes  on 
which  he  paid  without  dispute,  but  also  on  his  personal  estate.  He 
paid  under  protest  the  poll  tax  and  the  personal  property  tax  to  the 
treasurer  and  tax  collector  of  Boston.  The  case  was  reserved  for  the 
Supreme  Court. 

Shaw,  C.  J.*®  *  *  ♦  1"!-,^  only  remaining  question  is,  whether 
this  money  was  paid  voluntarily,  or  under  duress.  A  party  who  has 
paid  voluntarily  under  a  claim  of  right,  shall  not  afterwards  recover 
back  the  money,  although  he  protested  at  the  time  against  his  lia- 
bility. The  reason  of  this  is  obvious.  The  party  making  the  demand, 
may  know  the  means  of  proving  it,  which  he  may  afterwards  lose ; 

44  Accord:  McMurtrie  v.  Keenan  (1872)  109  Mass.  185;  Link  v.  Aiple-Hem- 
melniann  Keal  Estate  Co.  (1014)  182  Mo.  App.  531,  165  S.  W.  832. 

4  5  Contra:  Wessel  v.  Land  Mortgage  Co.  (1893)  3  N.  D.  IGO,  54  N.  W.  922, 
44  Am.  St.  Rep.  529. 

4  6  The  statement  of  facts  is  abridged  and  a  portion  of  the  opinion  is  omit- 
ted. 


548  BENEFITS  CONFERRED  UNDER  COMPULSION         (Ch.  5 

and  because  another  course,  would  put  it  in  the  power  of  the  other 
party,  to  choose  his  own  time  and  opportunity  for  commencing  a 
suit.  Brisbane  v.  Dacres,  5  Taunt.  143.  But  it  is  otherwise,  when  a 
party  is  compelled  by  duress  of  his  person  or  goods  to  pay  money 
for  which  he  is  not  liable ;  it  is  not  voluntary  but  compulsory,  and  he 
may  rescue  himself  from  such  duress,  by  payment  of  the  money,  and 
afterwards  on  proof  of  the  fact  recover  it  back.  Astley  v.  Reynolds, 
2  Str.  916. 

What  shall  constitute  such  duress,  is  often  made  a  question.  Threat 
of  a  distress  for  rent,  is  not  such  duress,  because  the  party  may  re- 
plevy the  goods  distrained  and  try  the  question  of  liability  at  law. 
Knibbs  v.  Hall,  1  Esp.  Rep.  84.  Threat  of  legal  process  is  not  such 
duress,  for  the  party  may  plead,  and  make  proof,  and  show  that  He 
is  not  liable.  Brown  v.  McKinally,  1  Esp.  Rep.  279.  But  the  warrant 
to  a  collector,  under  our  statute  for  the  assessment  and  collection  of 
taxes,  is  in  the  nature  of  an  execution,  running  against  the  person  and 
property  of  the  party,  upon  which  he  has  no  day  in  court,  no  oppor- 
tunity to  plead  and  ofifer  proof,  and  have  a  judicial  decision  of  the 
question  of  his  liability.  Where  therefore  a  party  not  liable  to  taxa- 
tion, is  called  on  peremptorily  to  pay  upon  such  a  warrant,  and  he  can 
save  himself  and  his  property  in  no  other  way  than  by  paying  the  il- 
legal demand,  he  may  give  notice,  that  he  so  pays  it  by  duress  and 
not  voluntarily,  and  by  showing  that  he  is  not  liable,  recover  it  back, 
as  money  had  and  received.  Amesbury  W.  &  C.  Manuf.  Co.  v.  Ames- 
bury,  17  Mass.  461. 

It  appears  by  the  facts  agreed,  that  upon  the  first  notice  of  the  tax, 
the  plaintiff  applied  to  the  treasurer  and  collector,  setting  forth  his 
specific  ground  of  objection,  namely,  that  he  was  not  an  inhabitant  and 
not  liable  to  the  tax  on  personal  property.  The  plaintiff  was  informed 
by  the  collector,  that  he  had  no  discretion  on  the  subject,  and  unless  he 
obtained  an  abatement,  a  warrant  of  distress  would  issue  against  him. 
He  then  applied  to  the  city  government,  stated  the  grounds  of  his  ob- 
jection, and  remonstrated  against  the  tax ;  but  they  decided  that  the 
tax  must  be  paid,  of  which  the  collector  was  duly  informed.  The  law 
under  which  the  treasurer  and  collector  acted,  obliged  him  to  issue  a 
warrant,  under  which  the  person  and  property  of  the  plaintiff  would 
have  been  liable  to  be  taken,  and  that  officer  had  notified  him  that 
such  warrant  would  be  issued.  Under  these  circumstances  the  money 
was  paid,  and  we  think  it  cannot  be  considered  as  a  voluntary  payment, 
but  a  payment  made  under  such  circumstances  of  constraint  and  com- 
pulsion, and  with  such  notice  on  his  part,  that  it  was  so  paid,  that  on 
showing  that  he  was  not  liable  he  may  recover  it  back,  in  this  action, 
from  the  defendants,  into  whose  treasury  it  has  gone. 

Defendants  defaulted.*^ 

47  "There  is  considerable  diversity  of  opinion  on  tlie  subject  of  the  recovery 
of  moneys  paid  for  taxes  illegally  assessed.  The  cases  turn  on  the  question 
whether  in  the  particular  circumstances  of  the  case  the  payment  was  to  ba 


Sec.  3)  COMPULSION  THROUGH   LEGAL  PROCEEDINGS  549 

regarded  as  voluntary  or  involuntary,  some  courts  holding  tbat  unless  a  pay- 
ment be  made  under  an  immediate  or  urgent  necessity,  i.  e.  to  avoid  an  actual 
or  threatened  seizure  or  sale  of  one's  goods,  the  payment  is  voluntary,  and 
cannot  be  recovered  even  if  made  under  protest.  Others  hold  that  when  a 
warrant  is  in  the  hands  of  a  collector  which  authorizes  him  to  levy  upon  and 
sell  the  property  of  the  delinquent  taxpayer,  such  warrant  being  in  the  nature 
of  an  execution,  and  tliere  being  no  means  for  testing  the  validity  of  the  tax, 
a  person  illegally  taxed  may  pay  the  tax  under  protest,  and  that  the  payment 
so  made  is  not  a  voluntary  payment  in  such  sense  as  to  prevent  its  recovery. 
*  *  *  PajTnent  to  avoid  the  levy  of  a  warrant  already  issued  and  in  the 
hands  of  the  collector,  and  just  as  sure  to  be  levied,  if  the  money  is  not  paid, 
as  night  to  follow  day.  is  just  as  much  a  payment  to  preserve  one's  goods  as 
though  the  levy  had  actually  been  threatened  or  made."  Per  Matteson,  O.  J., 
in  Rumford  Chemical  Works  v.  Ray  (1806)  19  R.  I.  456,  34  Atl.  S14. 

Recovery  of  Illegal  Taxes  Paid  under  Duress. — A  payment  of  an  illegal 
tax  or  license  fee,  made  after  an  actual  arrest  of  the  plaintiff,  or  a  seizure  of 
his  goods,  or  after  a  threat  of  immediate  arrest  or  seizure  of  goods,  is  deemed 
to  be  made  under  duress,  and  a  recovery  allowed.  Lindsey  v.  Allen  (1897) 
19  R.  I.  721,  36  Atl.  840 ;  Douglas  v.  Kansas  City  (ISOS)  147  Mo.  428,  48  S.  W. 
851;  Wheeler  v.  Plumas  County  (1906)  149  Cal.  782,  87  Pac.  802.  Contra: 
Bean  v.  City  of  Middlesborough  (1900)  57  S.  W.  478,  22  Ky.  I>aw  Rep.  415. 

It  is  generally  held  that  if  a  warrant  has  issued  to  the  knowledge  of  the 
plaintiff  his  payment  is  made  under  duress,  even  though  there  be  no  threat  of 
immediate  imprisonment  or  sale  of  his  goods.  Atwell  v.  Zeluff  (1872)  26  Mich. 
118 ;  St.  Anthony  &  Dakota  Elevator  Co.  v.  Bottineau  County  (1900)  9  N.  D. 
346,  83  N.  W.  212,  50  L.  R.  A.  262 ;  Rumford  Chemical  Works  v.  Ray,  supra. 
Contra:   Mayor  v.  Lefferman  (1846)  4  Gill  (Md.)  425,  45  Am.  Dec.  145. 

Where  no  warrant  has  been  issued  nor  other  measures  taken  to  enforce 
collection,  some  courts  hold  that  the  payment  is  made  under  duress.  Allen  v. 
Burlington  (1873)  45  Vt.  202;  Kansas  Pacific  Railway  Co.  v.  Commissioners 
(1876)  16  Kan.  587;  Ottawa  University  v.  Stratton  (1911)  85  Kan.  246,  116 
Pac.  892.  ("The  inevitableness  of  the  result,  unless  forestalled  by  payment, 
is  the  matter  of  primary  consequence  rather  than  the  nearness  of  the  time 
when  the  tax  proceeding  will  culminate.") 

Other  courts  hold  that  there  is  no  duress  until  some  measures  are  taken  to 
enforce  collection.  Railroad  Co.  v.  Commissioners  (1878)  98  U.  S.  541,  25  L,. 
Ed.  196  (compare  Atchison,  Topeka  &  Santa  Fe  Ry.  Co.  v.  0;Connor  [1911] 
223  U.  S.  280,  32  Sup.  Ct.  216,  56  L,  Ed.  436,  Ann.  Cas.  1913C,  1050,  cited  in- 
fra) ;  Raisler  v.  Mayor  (1880)  66  Ala.  194 ;  Morris  v.  City  of  New  Haven  (1906) 
78  Conn.  673,  63  Atl.  123;  Cincinnati,  etc.,  R.  Co.  v.  Hamilton  County  (1907) 
120  Tenn.  1.  113  S.  W,  361 ;  Miner  v,  Clifton  Township  (1912)  30  S.  D.  127, 
137  N.  W.  585. 

A  prompt  payment  under  protest  of  an  illegal  tax  to  avoid  the  accrual  of 
heavy  penalties  for  delay,  and  a  po.ssible  forfeiture  of  the  right  to  do  business, 
is  deemed  to  be  under  duress,  even  though  no  proceedings  have  been  taken 
or  threatened  to  collect  the  tax.  Atchison,  Topeka  &  Santa  F6  Railway  Co.  v. 
O'Connor  (1911)  223  U.  S.  280,  32  Sup.  Ct.  216,  56  L.  Ed.  436,  Ann,  Cas.  1013C, 
1050. 

A  payment  made  to  prevent  a  threatened  sale  of  real  estate  to  satisfj-  an 
Illegal  tax  is  considered  as  made  under  duress,  If  the  tax  sale  would  create 
a  cloud  on  title,  but  not  otherwise.  Detroit  v.  Martin  (1876)  34  Mich.  170,  22 
Am.  Rep.'  512 ;  The  Sonoma  County  Tax  Case  (1882  C.  C.)  13  Fed.  789 ;  Davies' 
Ex'rs  V.  City  of  Galveston  (1S97)  16  Tex.  Civ.  App.  13,  41  S.  W.  145 ;  Phelan  v. 
City  and  County  of  San  Francisco  (1S9S)  120  Cal.  1,  52  Pac.  38.  See  also 
Tozer  v.  Skagit  County  (1904)  34  Wash.  147,  75  Pac.  0.'5S.  (For  a  brief  state- 
ment of  the  conflicting  doctrines  as  to  what  constitutes  a  cloud  on  title,  see 
Pomeroy's  Equitable  Remedies,  §§  733,  734.) 

A  payment  of  taxes  made  to  enable  the  owner  of  land  to  record  his  deed 
has  been  held  to  be  under  duress.  State  v.  Nelson  (1889)  41  Minn.  25,  42  N. 
W.  548,  4  L.  R.  A.  300.  Contra :  Weston  v.  Luce  County  (1S94)  102  Mich.  528, 
61  N.  W.  15.  But  see  Gage  v.  City  of  Saginaw  (1901)  128  Mich.  682,  84  N.  W. 
1100,  87  N.  W.  1027  (statutory). 

Taxes  paid  under  duress  may  be  recovered,  though  no  protest  was  made 
at  the  time  of  payment.     Horgan  v.  Taylor  (1914)  36  R.  I.  232.  89  Atl.  1058. 

If  there  was  no  duress,  the  mere  statement  that  the  payment  was  made 


550  BENEFITS  CONFERRED  UNDER  COMPULSION  (Ch.  5 

MOSES  V.  MACFERLAN. 

(Court  of  King's  Bench,  1760.     2  Burr.  1005.)4» 
This  case  is  printed  at  page  17,  supra.*' 


MARRIOT  V.  HAMPTON. 
(Court  of  King's  Bench,  1797.     7  Term  R.  2G0.) 

The  defendant  formerly  brought  an  action  against  the  present 
plaintiff  for  goods  sold,  for  which  the  plaintiff  had  before  paid  and 
obtained  the  defendant's  receipt;  but  not  being  able  to  find  the  re- 
ceipt at  that  time,  and  having  no  other  proof  of  the  payment,  he 
could  not  defend  the  action,  but  was  obliged  to  submit  and  pay  the 
money  again,  and  he  gave  a  cognovit  for  the  costs.  The  plaintiff  aft- 
erwards found  the  receipt,  and  brought  this  action  for  money  had 
and  received  in  order  to  recover  back  the  amount  of  the  sum  so  wrong- 
fully enforced  in  payment.  But  Lord  Kenyon  was  of  opinion  at  the 
trial  that  after  the  money  had  been  paid  under  legal  process,  it  could 
not  be  recovered  back  again,  however  unconscientiously  retained  by 
the  defendant,  though  the  case  of  Moses  v.  Macferlan,  2  Burr.  1009, 
was  referred  to ;  and  thereupon  the  plaintiff  was  nonsuited. 

Gibbs  now  moved  to  set  aside  the  nonsuit  and  to  grant  a  new  trial; 
relying  on  a  subsequent  case  of  Livesay  v.  Rider,  E.  22  Geo.  Ill,  B. 
R.,  where  on  a  similar  motion  the  Court  held  such  an  action  maintain- 
able. And  he  pressed  for  the  opinion  of  the  Court  in  order  that  the 
question  might  be  settled. 

Lord  Kenyon,  Ch.  J.  I  am  afraid  of  such  a  precedent.  If  this 
action  could  be  maintained  I  know  not  what  cause  of  action  could 
ever  be  at  rest.  After  a  recovery  by  process  of  law  there  must  be 
an  end  of  litigation,  otherwise  there  would  be  no  security  for  any 

"under  protest"  does  not  justify  a  recovery.  Railrond  Co.  v.  Commissionerg 
(1S7S)  OS  I  J.  S.  541 ;  P.runson  v.  Board  of  Directors  of  Crawford  County  I.evee 
Dist.  (1913)  107  Ark.  24,  153  S.  W.  828,  44  L.  R.  A.  (N.  S.)  293,  Ann.  Cas.  1915A, 
403. 

By  statute  in  many  states  an  illegal  tax  or  license  fee,  paid  without  com- 
pulsion of  legal  proceedings,  may  nevertheless  be  recovered,  though  some- 
times it  is  held  that,  to  entitle  plaintiff  to  recover,  such  tax  must  have  been 
paid  '"under  protest."  Smith  v.  Tennessee  Coal,  Iron  &  R.  Co.  (1915,  Ala.) 
68  South.  865;  Otis  v.  San  Francisco  (1915,  Cal.)  148  Pac.  933;  Jackson  Hill 
Coal  &  Coke  Co.  v.  Board  of  Com'rs  of  Sullivan  County  (1914)  181  Ind.  335, 
104  N.  E.  497;  Commercial  Nat.  Bank  of  Council  Bluffs  v.  Board  of  Sup'rs  of 
Pottawattamie  County  (1915)  168  Iowa,  501,  150  X.  W.  704;  Xeilson  v.  San 
Pete  County  (1912)  40  Utah,  560,  123  Pac.  334 ;  and  cases  cited  in  37  Cyc.  1184, 
note  79. 

•*8  Money  paid  pursuant  to  a  void  judgment  may  be  recovered.  Hollings- 
■worth  V.  Stone  (1883)  90  Ind.  244,  248.  See,  also,  Murray  v.  Moorer  (1840) 
Cheves  (S.  C.)  111.  But  see  Elston  v.  City  of  Chicago  (186G)  40  111.  514,  89 
Am.  Dec.  361. 

Money  collected  by  execution  upon  a  judgment  already  satisfied  may  be  re- 
covered.    Wisner  v.  Bulkley  (1836)  15  Wend.  (N.  Y.)  321. 


Sec.  3)  COMPULSION  THROUGH   LEGAL  PROCEEDINGS  551 

person.  I  cannot  therefore  consent  even  to  grant  a  rule  to  shew 
cause,  lest  it  should  seem  to  imply  a  doubt.  It  often  happens  that 
new  trials  are  applied  for  on  the  ground  of  evidence  supposed  to  have 
been  discovered  after  the  trial;  and  they  are  as  often  refused;  but 
this  goes  much   further, 

AsHHURST,  J.,  of  the  same  opinion, 

Grose,  J.  It  would  tend  to  encourage  the  greatest  negligence  if 
we  were  to  open  a  door  to  parties  to  try  their  causes  again  because 
they  were  not  properly  prepared  the  first  time  with  their  evidence. 
Of  the  general  principle  there  can  be  no  doubt;  and  though  the  last 
case  cited  seems  to  throw  some  ambiguity  upon  it,  yet  some  of  the 
positions  there  stated  are  so  entirely  repugnant  to  every  principle 
of  law,  that  I  have  less  difficulty  in  disregarding  the  whole  author- 
ity of  it, 

Lawrence,  J.  If  the  case  alluded  to  be  law,  it  goes  the  length  of 
establishing  this,  that  every  species  of  evidence,  which  was  omitted 
by  accident  to  be  brought  forward  at  the  trial,  may  still  be  of  avail 
in  a  new  action  to  overrule  the  former  judgment,  which  is  too  prepos- 
terous to  be  stated. 

Rule  refused.* 

DUPUY  V.  ROEBUCK. 
(Supreme  Court  of  Alabama,  1845.     7  Ala,  4S4.) 

Writ  of  error  to  the  Circuit  Court  of  Jefferson, 

This  was  an  action  of  assumpsit,  at  the  suit  of  the  defendant  in 
error  against  the  plaintiff.  The  declaration  contains  two  counts.  In 
the  first  it  is  alleged  that  the  defendant  below  recovered  a  judgment 
against  the  plaintiff,  on,  &c.,  in,  &c.,  for  the  sum  of,  &c.,  which  judg-' 
ment  was  reversed  by  this  Court,  on,  &c.,  and  the  cause  remanded  ;  that 
previous  to  the  reversal  of  that  judgment,  an  execution  was  placed 
in  the  sheriff's  hands,  requiring  him  to  make  the  amount  thereof,  and 
the  same  was  satisfied  by  the  plaintiff  in  this  action.  It  is  tiien  stated 
that  the  defendant  below  submitted  to  a  non-suit  in  that  case ;  in  con- 
sideration whereof,  he  became  liable  to  refund  the  amount  paid  to  the 
sheriff,  and  thereupon  promised,  &c.  The  second  count  is  for  money 
had  and  received,  &c. 

The  cause  was  tried  on  the  pleas  of  non-assumpsit  and  set  off.  On 
the  trial,  the  defendant  excepted  to  the  ruling  of  the  Court.  It  is 
shown  by  the  bill  of  exceptions,  that  the  plaintiff  having  proved  the 
truth  of  the  allegations,  contained  in  the  first  count  of  the  declaration, 
rested  his  case.  The  defendant  relied  on  an  alleged  breach  of  war- 
ranty by  the  plaintiff,  as  a  set-off  to  the  plaintiff's  claim. 

The  Court  charged  the  jury,  that  conceding  the  truth  of  all  the  testi- 
mony in  the  cause,  it  did  not  furnish  a  defence  to  the  action.  A  verdict 
was  returned  for  the  plaintiff,  and  judgment  rendered  accordingly. 

♦Compare  Wiudbiel  v.  Carroll  (1S78)  10  Tlun  (N.  Y.)  101,  raw  05,  supra. 


552  BENEFITS   CONFERRED   UNDER   COMPULSION  (Ch.  5 

CouuER,  C.  J.*»  In  Duncan  v.  Ware's  Ex'rs,  5  Stew.  &  P.  119,  24 
Am.  Dec.  772,  it  was  held  that  assumpsit  for  money  had  and  received, 
would  lie,  to  recover  back  money  paid  upon  a  judgment  which  was  after- 
wards reversed.  But  in  that  case,  as  the  reversal  was  for  irregularity 
merely,  and  the  debt  was  justly  due,  the  defendant  was  permitted  to 
retain  the  money.  A  similar  decision  was  made  in  Green  v.  Stone,  1 
Har.  &  J.  (Md.)  405,  where  it  was  said  that  the  plaintiff  could  not  re- 
cover, unless  the  retention  of  the  money  by  the  defendant  was  contrar}'- 
to  equity  and  right;  the  defendant  may  resort  to  any.equitable  or  con- 
scientious defence  to  repel  the  claim  of  the  plaintiff,  and  may  show  the 
justice  of  his  original  claim ;  so  the  plaintiff  may  prove,  that  he  is  not 
in  law  or  justice  liable  to  pay  the  same.  "A  judgment  reversed,  be- 
comes mere  waste  paper,  and  the  rights  of  the  party,  immediately  on  the 
reversal,  are  restored  to  the  same  situation  in  which  they  were,  prior  to 
the  pronouncing  of  the  judgment  so  reversed."  In  Clark  v.  Pinney,  6 
Cow.  (N.  Y.)  297,  it  was  said,  when  money  is  paid  upon  an  erroneous 
judgment,  which  is  subsequently  reversed,  "the  legal  conclusion  is  irre- 
sistible, that  the  money  belongs  to  the  person  from  whom  it  was  col- 
lected. Of  course  he  is  entitled  to  have  it  returned  to  him."  And  the 
action,  it  was  determined,  could  be  maintained,  although,  upon  the  re- 
versal of  the  judgment,  the  cause  was  remanded,  and  was  still  pending 
in  the  primary  court.  Sturges  v.  Allis  &  Lee,  10  Wend.  (N.  Y.)  354; 
see,  also,  Lazell  v.  Miller,  15  Mass.  207;  Isom  v.  Johns,  2  Munf.  (Va.) 
272;  Hosmer  v.  Barret,  2  Root  (Conn.)  156;  Duncan  v.  Kirkpatrick,  13 
Serg.  &  R.  (Pa.)  292 ;  Jamaica  v.  Guilford,  2  D.  Chip.  (Vt.)  103 ;  Den- 
nett V.  Nevers,  7  Greenl.  (Me.)  399;  Hamilton  v.  Aslin,  3  Watts  (Pa.) 
222. 

The  action  of  assumpsit  for  money  had  and  received,  has  been  some- 
times assimilated  to  a  bill  in  equity,  and  the  true  test  to  the  plaintiff's 
right  to  recover,  said  to  depend  upon  the  fact,  whether  the  defendant 
can,  in  equity  and  good  conscience,  retain  the  money  sought  to  be  re- 
covered. Although  the  law  is  thus  generally  stated,  the  adjudged  cases 
show  what  is  meant  by  an  equitable  right  to  retain  money  paid  upon  a 
judgment,  which  was  afterwards  reversed.  It  must  grow  out  of,  or  be 
connected  with,  the  case  in  which  the  judgment  was  vacated.  Thus  the 
party  who  has  received  the  money,  may  show  that  he  is  entitled  to  re- 
cover for  the  cause  alleged,  though  he  mistook  the  appropriate  remedy, 
or  irregularities  intervened  which  made  it  erroneous.  But  it  is  not  per- 
missible to  justify  the  retention,  by  showing  that  the  party  has  another 
cause  of  action,  in  which  he  will  be  entitled  to  recover  as  much  as  he 
received  and  retains.  Such  a  defence  could  not  be  entertained,  con- 
sistently with  principle,  unless  it  embraced  a  dernand  that  was  a  proper 
subject  of  set  off.  If  it  was  a  breach  of  covenant  for  quiet  enjoyment, 
or  other  unliquidated  demand,  distinct  from  the  case  in  which  the  mon- 
ey was  paid,  it  could  not  be  interposed  as  a  bar  to  the  action.    In  such 

*8  The  statement  of  facts  is  abridged  and  a  portion  of  the  opinion  is  omit- 
ted. 


Sec.  3)  COMPULSION  THROUGH    LEGAL   PROCEEDINGS  553 

case,  to  make  his  demand  available,  the  defendant  must  become  the 
actor  in  a  suit,  and  have  the  damages  he  has  sustained,  ascertained  by  a 
judgment.     *     *     * 

The  consequence  of  what  we  have  said,  is,  that  the  judgment  of  the 
Circuit  Court  must  be  affirmed.''** 

5  0  In  Teasdale  v.  Stoller  (1896)  133  Mo.  645.  34  S.  W.  873,  54  Am.  St.  Rep. 
703,  the  defendant's  judgment  was  reversed  on  a  technicality,  although  his 
claim  was  a  just  one.  The  court,  Brace,  P.  J.,  in  holding  tliat  money  paid  In 
satisfaction  of  the  judgment  could  not  be  recovered,  said:  "It  is  sometimes 
laid  down  as  a  general  rule  that  money  paid  on  a  judgment  that  is  afterwards 
reversed  may  be  recovered  back  in  an  action  for  money  had  and  received.  The 
great  majority  of  the  cases  which  are  cited  in  support  of  this  rule  are  cases  in 
which  payment  of  the  judgment,  in  whole  or  in  part,  has  been  coerced  by  pro- 
cess thereon,  or  otherwise.  These  cases  are,  of  course,  not  in  conflict  with 
the  well-settled  principle  of  law  that  one  who  voluntarily  pays  money,  with 
full  knowledge  of  all  the  facts,  and  without  any  fraud  having  been  practiced 
upon  him,  cannot  recover  it  back  because,  at  the  time  of  the  payment,  he  was 
Ignorant  of,  or  mistook,  the  law  as  to  his  legal  liability.  This  doctrine  has 
been  frequently  applied  to  payments  on  judgments  that  have  been  afterwards 
reversed,  and  in  some  of  the  cases  it  has  been  held  that,  if  the  payment  was 
voluntary,  no  recovery  could  be  had ;  making  the  case  turn  upon  the  single 
fact  of  voluntary  payment  Of  this  class  of  cases,  the  recent  case  of  Gould 
V.  McFall,  118  Pa.  455,  12  Atl.  336,  4  Am.  St.  Rep.  606,  is  an  example. 
There  are  other  cases  in  which  a  right  of  recovery  has  been  maintained,  al- 
though the  judgment  was  voluntarily  paid,  of  which  class  Scholey  v.  Halsey. 
72  N.  Y.  578,  is  an  example.  In  this  latter  class  of  cases  it  will  be  found 
that  upon  the  facts  the  action  was  maintained  upon  the  ground  that,  al- 
though the  payment  was  voluntary,  yet  the  defendant  having  received  the 
money  of  the  plaintiff,  to  which,  ex  jequo  et  bono,  he  was  not  entitled,  the 
same  was  recoverable  by  writ  of  restitution,  or  by  action  in  assumpsit  for  mon- 
ey had  and  received.  But  it  is  believed  that  no  well-considered  case  can  be 
found  in  which  it  has  been  held,  where  money  has  been  voluntarily  paid  on 
account  or  in  satisfaction  of  a  judgment  afterwards  reversed,  and  the  party 
to  whom  it  was  paid,  in  equity  and  good  conscience,  was  entitled  to  the  same, 
that  it  could  be  recovered  back.  To  so  hold  would  be  entirely  repugnant  to 
the  very  principle  upon  which  the  action  is  founded.  As  was  said  in  an  early 
case  by  Chase,  C.  J.:  'The  plaintiff  cannot  recover  unless  the  defendant's  re- 
taining the  money  is  contrary  to  equity  and  right.  The  defendant  may  resort 
to  any  equitable  or  conscientious  defense  to  repel  the  claim  of  the  plaintiff, 
and  may  show  the  justice  of  his  original  claim.'  Green  v.  Stone,  1  Har. 
&  J.  (Md.)  408.  The  justice  of  the  defendants'  original  claim  is  not  only  shown 
by  the  conceded  facts  of  this  case,  but  the  justice  of  the  judgment  set  aside 
was  established  in  the  judgment  of  this  court  upon  appeal  therefrom.  The 
defendants  lo.st  the  benefit  thereof  merely  by  'a  slip'  in  their  own  procedure, 
and  ought  not  to  be  compelled  to  refund  the  money  which  they  rightfully  re- 
ceived, and  which,  in  equity  and  good  conscience,  they  may  retain." 

In  Stevens  v.  Fitch  (1846)  11  Mete.  (Mass.)  248,  the  defendant  had  recovered 
judgment  against  Stephen  Stevens  for  tiowage  of  lands  caused  by  the  erection 
of  a  dam  on  the  land  of  the  latter.  The  judgment  had,  however,  been  paid 
by  Jonathan  Stevens,  the  present  plaintiff,  who- owned  the  mill  and  mill  site, 
and  who  had  agreed  to  indeumify  Stephen  Stevens  for  all  dama.ges  resulting 
therefrom.  The  defendant's  judgment  having  been  set  aside  by  the-  Supreme 
Court,  Jonathan  Stevens  sued  to  recover  the  money  paid  in  satisfaction  of  the 
judgment  against  Stephen  Stevens.  The  court,  speaking  through  Wilde,  J., 
held  for  the  plaintiff,  and  to  the  objection  that  there  was  no  privity  between 
him  and  the  defendant  said  :  "The  plaintiff  was  the  sole  party  in  interest,  and 
he  paid  the  money  on  his  own  account,  which  he  was  obliged  to  pay,  on  a  consid- 
eration which  has  failed;  and  this  shows  a  privity  of  contract  implied  by 
law." 


554     ■  BENEFITS   CONFERRED   UNDER  COMPULSION  (Ch. 


SECTION  4.— COMPULSION  COUPLED  WITH  ILLEGALITY 


WHEATON  V.  HIBBARD. 
(Supreme  Court  of  New  York,  1822,     20  Johns.  290,  11  Am.  Dec.  284.) 

In  error  to  the  Court  of  Common  Pleas  of  Onondaga  county.  Hib- 
bard  brought  an  action  of  assumpsit  against  Wheaton  in  a  justice's 
court.  The  declaration  contained  the  common  money  counts,  to  which 
the  defendant  pleaded  non  assumpsit,  with  notice  that  the  money  re- 
ceived by  the  defendant  was  for  excess  of  interest  above  the  lawful 
rate  of  interest.  The  justice  gave  judgment  for  the  plaintiff  for  thirty- 
five  dollars,  damages,  and  three  dollars  and  sixty-nine  cents,  costs. 
Wheaton  appealed  from  this  judgment  to  the  Court  of  Common  Pleas. 

In  the  latter  court  a  special  verdict  was  found  in  favor  of  Hibbard 
and  judgment  was  rendered  thereon.  And  on  this  judgment  a  writ  of 
error  was  brought  returnable  to  this  court. 

Spencer,  C.  J.^^  *  .*  *  The  points  reserved  by  the  special  ver- 
dict, and  submitted  to  the  court,  are,  1st.  Whether  an  action  of  assump- 
sit will  lie  after  a  year,  in  favor  of  the  person  paying  usurious  interest; 
and,  2d.  Whether  the  law,  under  tlie  facts  found,  presumes  a  promise. 

The  statute  to  prevent  usury,  (1  N.  R.  L.  64,)  after  regulating  the 
rate  of  interest,  authorizes  the  party  paying  usurious  interest,  to  sue 
for  and  recover  the  excess  above  seven  per  cent.,  within  one  year  then 
next,  with  costs  of  suit,  in  an  action  of  debt,  founded  on  the  act;  and  it 
prescribes  a  succinct  form  of  declaring.  It  then  provides,  that  if  the 
person  paying  usury  shall  not,  within  the  time  aforesaid,  really  and 
bona  fide,  commence  his  suit  for  the  money  so  paid,  or  suffers  it  to  be 
delayed  or  discontinued,  then  it  shall  be  lawful  for  any  other  person, 
within  one  year  after  such  neglect,  to  sue  for  and  recover  the  same,  in 
manner  aforesaid,  one  moiety  whereof  is  given  to  such  person,  and  the 
other  moiety  to  the  use  of  the  poor  of  the  town  in  which  the  offence  is 
committed. 

This  provision  is  peculiar  to  our  statute.  By  the  12  Anne,  ch.  16, 
the  party  receiving  more  than  the  legal  rate  of  interest,  forfeited  the 
treble  value  of  the  moneys  or  other  things  lent.  It  is  contended,  that 
the  person  who  pays  above  the  legal  rate  of  interest,  is  confined  to  the 
statute  remedy,  and  that  he  must  not  only  sue  in  an  action  of  debt,  but 
that  the  suit  must  be  within  one  year,  or  he  is  forever  precluded.  Now 
the  principle  is,  that  where  a  party  has  a  remedy  at  common  law  for  a 
wrong,  and  a  statute  be  passed,  giving  a  further  remedy,  without  a  nega- 
tive of  the  common  law  remedy,  expressed  or  implied,  he  may,  not- 

51  The  statement  of  facts  is  abridged  and  portions  of  the  opinion  are  omitted. 


Sec.  4)  coMpyLSioN  coupled  with  illegality  555 

withstanding  the  statute,  have  his  remedy  by  action  at  common  law.  1 
Com.  Dig.  Action  on  Statute,  C.  There  are  no  words  in  the  statute,  ei- 
ther expressly  or  impliedly,  negativing  the  common  law  remedy.  The 
ihjured  party  cannot  have  both  remedies,  and  if  he  neglect  to  pursue 
the  statute  remedy  for  more  than  a  year,  his  right  of  action  at  common 
law  would  be  suspended  during  the  second  year,  for,  peradventure,  a 
third  person  may  prosecute.  But,  in  the  present  case,  the  excessive 
interest  was  received  in  1816  and  1817.  It  was  incumbent  on  the  de- 
fendant to  show,  had  the  fact  been  so,  that  he  had  been  sued  within  the 
second  year ;  and  not  having  shown  this,  the  statute  remedy  is  gone.  It 
is  undeniable,  that  a  party  who  has  paid  excessive  interest  may,  at  com- 
mon law,  recover  the  excess,  in  an  action  for  money  had  and  received. 
The  law  considers  the  borrower  rather  as  a  victim  than  an  aggressor. 
The  statute  prohibits  usury,  in  order  to  protect  needy  and  necessitous 
persons  from  the  oppression  of  usurers,  who  are  eager  to  take  ad- 
vantage of  the  distresses  of  others,  and  who  violate  the  law  only  to  com- 
plete their  ruin.  In  such  a  case,  the  maxim  of  potior  est  conditio  de- 
fendentis  has  never  been  applied.  But  the  party  injured  cannot  recover 
any  part  of  the  principal  and  legal  interest ;  and  to  entitle  him  to  main- 
tain the  action,  he  must  show  that  he  has  done  all  that  equity  requires. 
Bacon,  Usury,  G.  1  Term  Rep.  153,  *  *  * 
Judgment  afifirmed.^^ 

62  Accord:  The  State  Bank  v.  Ensminger  (1844)  7  Blaclcf.  (Ind.)  105; 
Brown  v.  Mcintosh  (1S76)  39  N.  J.  Law,  22.  In  Brown  v.  .Mcintosh,  Iteed, 
J.,  said:  "This  claim  for  the  recovery  of  money  usuriously  paid,  ou 
first  impression  seems  to  encounter  two  funchiniental  maxims  of  tlie  com- 
mon law.  As  it  was  apparently  Paid  voluntarily,  the  rule  volenti  non  fit 
injuria  would  appear  to  forbid  its  recovery.  As  it  was  paid  in  contravention 
of  the  provision  of  a  statute,  the  maxim  in  pari  delicto  potior  est  conditio  de- 
fendentis,  would  appear  to  place  another  ol)stacle  in  the  way  of  any  remedy 
for  a  i)arty  to  the  payment.  *  *  *  The  common  law  courts  distin.^uished 
a  class  of  statutes,  a' payment  made  in  violation  of  the  provisions  of  which 
did  not  fall  within  the  operation  of  the  rule  of  in  pari  delicto.  This  distinc- 
tion is  well  stated  in  note  F  to  the  case  of  .lones  v.  Barkley,  Dougl.  G97,  a: 
'Where  the  law  that  creates  the  illegality  in  the  transaction,  was  designed  for 
the  coercion  of  one  party  and  the  protection  of  the  other,  or  where  one  party 
is  the  principal  ollender  and  the  other  only  criminal,  from  a  constrained  ac- 
quiescence in  such  illegal  conduct  in  these  t-ases,  there  is  no  parity  of  delictunj 
at  all  between  the  parties.'  *  *  *  It  is  observable  that  the  reasoning  which 
relieves  the  payer  of  the  character  of  i)articeps  criminis,  also  takes  his  pay- 
ment out  of  the  operation  of  the  rule  relative  to  voluntary  payments.  No 
payment  obtained  through  oppression  or  undue  advantage  is  voluntary,  and 
the  law  presumes  every  payment  made  to  a  person  who  is  by  statute  forbidden 
to  receive  it,  where  the  statute  is  for  the  protection  of  the  payer,  as  made 
through  oppression  and  undue  advantage." 

The  early  case  of  Tompkins  v.  Beniet  (lGn:5)  1  Salk.  22,  contra,  is  overruled. 
See  Clark  v.  Shee  (1774)  Cowp.  200,  where  Lord  Mansfield,  C.  J.,  said  :  '"That  case 
has  been  denied  a  thousand  times."  The  same  judge  in  Smith  v.  Bromley 
(1760)  Dougl.  G96,  note,  page  550,  infra,  says  as  to  this  case:  "I  think  the  judg- 
ment may  have  been  right,  but  the  reporter  [Salkeld],  not  properly  acijuainted 
with  the  facts,  has  recourse  to  false  reasons  in  support  of  it.  The  case  must 
have  been,  as  I  take  it,  an  action  to  recover  back  what  had  been  paid,  in  part 
of  principal,  and  legal  interest  upon  an  usurious  contract;  and,  therefore,  the 
action  would  not  lie,  for  so  far  as  principal  and  legal  interest  went,  the 
debtor  was  obliged,  in  natural  justice,  to  pay,  therefore  he  could  hot  recover 


556  BENEFITS   CONFERRED   UNDER   COMPULSION  (Ch.  5 


r 


NICHOLLS  V.  SKEEL. 

(Supreme  Court  of  Iowa,  1861.     12  Iowa,  300.) 

Appeal  from  Scott  District  Court. 

Lowe,  C.  J.  The  question  reserved  for  our  determination  is,  wheth- 
er usurious  interest  voluntarily  paid  by  the  borrower  to  the  lender  can 
be  recovered  back. 

The  English  statutes  are  peremptory,  and  declare  usurious  contracts 
absolutely  void.  A  number  of  the  American  statutes  do  the  same  thing. 
Other  American  statutes  provide  by  express  enactment  for  the  recovery 
back  of  usurious  interest.  Both  classes  of  these  statutes  view  the  bor- 
rower as  an  innocent  victim,  and  the  lender  a  rapacious  Shylock,  and 
visit  their  penalties  alone  upon  the  latter.  Decisions  in  England  and 
America  based  upon  these  statutes  are  cited  by  the  plaintiff  as  his  au- 
thority for  bringing  and  maintaining  an  action  of  this  kind. 

Our  usury  law  is  quite  dissimilar  in  its  provisions  to  the  above  stat- 
utes. It  does  not  declare  the  contract  void.  It  prohibits  usury  as  an 
evil,  affecting  the  business  morals  of  society  and  the  healthy  action  of 
trade.  It  regards  the  parties  to  such  a  contract  in  pari  delicto,  holds 
them  alike  obnoxious  to  its  animadversions,  and  makes  the  school  fund 
the  recipient  of  the  forfeitures  resulting  from  their  illegal  acts. 

To  permit  tlie  borrower,  under  these  circumstances,  to  sue  for  and 
recover  back  usury  which  he  had  paid  without  objection,  would  be 
to  allow  him  to  take  advantage  of  his  own  unlawful  conduct,  defeat  the 
policy  of  the  statute,  defraud  the  school  fund,  encourage  similar  viola- 
tions ;  and  a  suit  for  such  a  purpose  cannot  and  ought  not  to  be  main- 
tained. The  Ohio  and  Massachusetts  authorities  will  sustain  this  de- 
cision. 

Judgment  below  affirmed.'*' 


SMITH  V.  BROMLEY. 

(Nisi  Trius,  at  Guildhall,  before  Lord  Mausiield,  C.  J.,  17C0.    2  Dougl. 

696,  note.) 

Action  for  money  had  and  received  to  the  plaintiff's  use,  upon  this 
case:  The  plaintiff's  brother  having  committed  an  act  of  bankruptcy, 
the  defendant,  being  his  chief  creditor,  took  out  a  commission  against 
him,  but,  afterwards,  finding  no  dividend  likely  to  be  made,  refused  to 

it  back.  But  for  all  above  legal  interest,  equity  will  assist  the  debtor  to 
retain,  if  not  paid,  or  an  action  will  lie  to  recover  back  the  surplus,  if  the 
whole  has  been  paid." 

53  See  also  Gross  v.  Coffey  (1895)  111  Ala.  468,  20  South.  428.  (Statute  does 
not  render  usurious  contracts  void  but  only  provides  a  defence  thereto.)  Mar- 
vin V.  Mandell  (1878)  125  Mass.  562.  (Statute  merely  makes  unenforceable 
the  contract  to  pay  the  excessive  interest.) 

For  a  discussion  of  recent  English  legislation  on  the  subject  of  usury,  see 
the  several  opinions  in  Samuel  v.  Newbold,  [1906]  A.  C.  461. 


Sec.  4)  COMPULSION   COUrLED   WITH    ILLEGALITY  557 

sign  his  certificate.  But  on  frequent  application,  and  earnest  entreaties, 
made  by  the  bankrupt  to  one  OHver,  a  tradesman  in  town,  who  was  an 
intimate  friend  of  the  defendant,  who  hved  in  Cheshire,  he  got  OHver 
to  write  to  the  defendant  several  times,  and  he  at  last  prevailed  on  the 
defendant  to  send  him,  (Oliver,)  a  letter  of  attorney,  empowering  him 
to  sign  the  certificate,  which  Oliver  would  not  do,  unless  the  bankrupt 
or  somebody  for  him,  would  advance  i40.,  and  give  a  note  for  i20. 
more,  and  which,  on  Oliver's  signing  the  certificate  for  the  defendant, 
the  plaintiff,  (who  was  the  bankrupt's  sister,)  paid,  and  gave  to  Oliver 
accordingly,  who  thereupon  gave  her  a  receipt  for  the  money,  promis- 
ing to  return  it,  if  the  certificate  was  not  allowed  by  the  Chancellor. 
The  certificate  was  allowed.  The  plaintiff  afterwards  brought  her  ac- 
tion against  Oliver  to  recover  back  the  £40.  from  him.  but,  that  action 
coming  on  to  be  tried  before  Lord  Mansfield,  at  Guildhall,  at  the  sittings 
after  last  Trinity  term,  and  it  then  appearing  that  Oliver  had  actually 
paid  over,  or  accounted  for,  the  £40.  to  Bromley,  and  his  Lordship  be- 
ing clearly  of  opinion,  that  this  action  would  not  lie  against  the  plain- 
tiff's own  agent,  who  had  actually  applied  the  money  to  the  purpose  for 
which  it  was  paid  to  him,  the  plaintiff  was  nonsuited  in  that  action ; 
and  now  she  brought  this  action  against  Bromley  himself ;  which  com- 
ing on  to  be  tried,  it  was  proved,  that  the  money  was  received  by  Oliver, 
and  paid  over  to  the  defendant. 

It  was  contended  for  the  plaintiff,  that  this  money  was  paid,  either 
without  consideration,  or  upon  one  that  was  illegal,  and,  in  either  case, 
was  recoverable  back  by  this  action. 

For  the  defendant,  it  was  argued,  that  there  was  certainly  a  considera- 
tion for  the  payment  of  the  money,  to  wit,  the  signing  of  the  bankrupt's 
certificate ;  that,  if  this  consideration  was  illegal,  the  plaintiff  was  parti- 
ceps  criminis,  had  paid  it  voluntarily  and  knowingly,  and  without  any 
deceit,  and  so  was  within  the  case  of  Tomkins  v.  Bernet,  H.  5  Will.  IH, 
at  N.  Pr.  before  Treby,  Chief  Justice,  1  Salk.  22;  but  that  there  was 
nothing  illegal  in  it ;  for  it  was  the  money  of  a  third  person,  and  so  no 
diminution  of  the  bankrupt's  effects,  or  fraud  upon  his  creditors;  in 
which  case  only,  whereby  the  distribution  becomes  unequal,  is  there  any 
iniquity  in  receiving  a  consideration  for  signing  the  certificate. 

But  Lord  Mansfield,  C.  J.,^*  was  of  a  different  opinion.  He  said,  it 
was  iniquitous  and  illegal  in  the  defendant  to  take,  and,  therefore,  it  was 
so  to  detain,  this  £40.  If  a  man  makes  use  of  what  is  in  his  own  power 
to  extort  money  from  one  in  distress,  it  is  certainly  illegal  and  oppres- 
sive, and,  whether  it  was  the  bankrupt  or  his  sister  that  paid  the  money, 
it  is  the  same  thing.  The  taking  money  for  signing  certificates  is  either 
an  oppression  on  the  bankrupt  or  his  family,  or  a  fraud  on  his  other 
creditors.  It  was  a  thing  wrong  in  itself,  before  any  provision  was 
made  against  it  by  statute;  for,  if  the  bankrupt  has  conformed  to  all 
the  law  requires  of  him,  and  has  fairly  given  up  his  all,  the  creditor 

0*  Portions  of  the  argument  for  defendant  and  of  the  opinion  are  omitted. 


558  BENEFITS   CONFERRED   UNDER  COMPULSION  (Ch.  5 

ought,  in  justice  to  sign  his  certificate:  but,  on  the  other  hand,  if  the 
bankrupt  has  been  guilty  of  any  fraud,  or  concealment,  "the  creditor 
ought  not  to  sign,  for  any  consideration  whatever.  If  any  near  rela- 
tion is  induced  to  pay  the  money  for  the  bankrupt  it  is  taking  an  unfair 
advantage,  and  torturing  the  compassion  of  his  family :  if  it  is  the  mon- 
ey of  the  bankrupt  himself,  it  is  giving  one  creditor  his  debt  to  the  ex- 
clusion of  the  others,  and  a  fraud  upon  them.     *     *     * 

It  is  argued,  that,  as  the  plaintiff  founds  her  claim  on  an  illegal  act, 
she  shall  not  have  relief  in  a  Court  of  Justice.  But  she  did  not  apply 
to  the  defendant  or  his  agent  to  sign  the  certificate  on  an  improper  or 
illegal  consideration ;  but,  as  the  defendant  insisted  upon  it,  she,  in  com- 
passion to  her  brother,  paid  what  he  required.  If  the  act  is  in  itself 
immoral,  or  a  violation  of  the  general  laws  of  public  policy,  there,  the, 
party  paying  shall  not  have  this  action ;  for  where  both  parties  are 
equally  criminal  against  such  general  laws,  the  rule  is,  potior  est  con- 
ditio defendentis.  But  there  are  other  laws,  which  are  calculated  for 
the  protection  of  the  subject  against  oppression,  extortion,  deceit,  &c. 
If  such  laws  are  violated,  and  the  defendant  takes  advantage  of  the 
plaintiff's  condition  or  situation,  there  the  plaintiff  shall  recover,  and 
it  is  astonishing  that  the  reports  do  not  distinguish  between  the  violation 
of  the  one  sort  and  the  other.*^     *     *     * 

The  case  of  money  given  to  a  solicitor  to  bribe  a  Custom-House  offi- 
cer, cited  in  that  of  Tomkins  v.  Bernet,  is  against  his  own  agent,  and, 
therefore,  he  cannot  recover.  But  the  present  is  the  case  of  a  trans- 
gression of  a  law  made  to  prevent  oppression,  either  on  the  bankrupt, 
or  his  family,  and  the  plaintiff  is  in  the  case  of  a  person  oppressed, 
from  whom  money  has  been  extorted,  and  advantage  taken  of  her  situ- 
ation and  concern  for  her  brother.  This  does  not  depend  on  general 
reasoning  only,  but  there  are  analogous  cases ;  as  that  of  Astley  v. 
Reynolds,  B.  R.  M.  5  Geo.  II,  2  Str.  915.  There,  the  plaintiff  having 
pawned  some  goods  with  the  defendant  for  £20.,  he  refused  to  deliver 
them  up,  unless  the  plaintiff  would  pay  him  £10.  The  plaintiff  had 
tendered  £4.  which  was  more  than  the  legal  interest  amounted  to ;  but, 
finding  that  he  could  not  otherwise  get  his  goods  back,  he  at  last  paid 
the  whole  demand,  and  brought  an  action  for  the  surplus  beyond  legal 
interest,  as  money  had  and  received  to  his  use,  and  recovered.  It  is 
absurd  to  say,  that  any  one  transgresses  a  law  made  for  his  own  ad- 
vantage, willingly.  Put  the  case,  that  a  man  pawns  another's  goods; 
the  right  owner  might  be  obliged  to  pay  more  than  the  value,  and  would 
have  no  relief,  if  this  action  will  not  lie.  As  to  the  case  of  usury,  it 
was  decided  both  by  Lord  Talbot,  and  Lord  Hardwicke,  in  the  case  of 
Bosanquet  v.  Dashwood,  Cane.  M.  8  Geo.  II,  ca.  temp.  Talb.  38,  on  a 
bill  brought  to  compel  the  defendant  to  refund  what  he  had  received 
above  principal  and  legal  interest,  that  the  surplus  should  be  repaid. 
Upon  the  whole,  I  am  persuaded  it  is  necessary,  for  the  better  support 

65  His  Lordship  here  discussed  Tomkins  v.  Bernet  (1693)  1  Salk.  22.     See 
\f)iye  005,  note,  supra. 


Sec.  4)  COMPULSION   COUPLED   WITH   ILLEGALITY  559- 

and  maintenance  of  the  law,  to  allow  this  action ;  for  no  man  will  ven- 
ture to  take,  if  he  knows  he  is  liable  to  refund.  Where  there  is  no 
temptation  to  the  contrary,  men  will  always  act  right. 

The  jury,  under  his  Lordship's  direction,  found  a  verdict  for  the 
plaintiff,  with  £40.  damages."" 


GILMOUR  V.  THOMPSON. 
(Marine  Court  of  the  City  of  New  York,  General  Term,  1S75.    6  Daly,  93.) 

Appeal,  by  defendants  from  a  judgment  in  favor  of  the  plaintiff  and 
against  the  defendants,  for  $284.54,  entered  on  the  decision  of  a  judge 
of  the  Marine  Court,  rendered  after  a  trial  before  him  without  a  jury. 

The  action  was  brought  to  recover  from  the  defendants  the  amount 
(with  interest)  of  a  certain  promissory  note  for  $226.35,  alleged  to  have 
been  exacted  from  the  plaintiff  by  the  defendants,  in  fraud  of  the 
plaintiff's  other  creditors,  as  a  condition  of  the  signing  by  the  defend- 
ants of  a  compromise  agreement  made  by  the  plaintiff  with  his  creditors, 
on  account  of  his  inability  to  pay  them  all  in  full,  and  which  the  plain- 
tiff had  been  obliged  to  pay  to  a  bona  fide  holder.  On  the  trial,  no 
evidence  was  given  on  the  part  of  the  defendant,  and  the  facts,  as  they 
were  sworn  to  by  the  plaintiff,  were  as  follows : 

On  May  24th,  1873,  the  defendants,  who  were  a  firm  doing  business 
under  the  name  of  James  Thompson  &  Co.,  were  creditors  of  the  plain- 
tiffs in  the  sum  of  $377.25,  and  on  that  day  joined  with  the  other  credi- 
tors of  the  plaintiff  in  signing  a  compromise  agreement  by  which  his 
creditors  agreed  to  accept,  in  tull  satisfaction  of  their  respective  claims, 
the  plaintiff's  promissory  notes,  payable  at  six  months,  with  satisfac- 
tory indorsers,  for  forty  per  cent,  of  their  respective  claims.  The 
defendants  signed  this  agreement  after  having  asked  for  and  secured 
from  the  plaintiff  a  promise  that  he  would  secure  their  whole  claim  to 
them.  In  pursuance  of  this  agreement,  the  plaintiff'  delivered  to  the 
defendants  the  compromise  note,  satisfactorily  indorsed,  and  also, 
about  the  16th  or  18th  o-f  June,  1873  (after  the  signing  of  the  com- 
promise agreement),  delivered  to  them  a  note  at  five  months,  for  $226.- 
35,  the  balance  of  their  claim.  Before  maturity  of  this  note,  the  de- 
fendant indorsed  and  delivered  it  to  a  holder  for  value,  and  without 
notice  of  any  defense  to  the  note,  and  the  plaintiff  was  obliged  to  and 
did  pay  it  to  him. 

McAdam,  J.  In  Bean  v.  Brooknivel  &  Rankin,  7  Bankr.  Reg.  575, 
Chief  Justice  Dillon  laid  down  the  rule  applicable  to  this  class  of  cases 
as  follows :  "The  rules  of  law  respecting  the  good  faith  to  be  observed 

5  6  "It  is  somewhat  difficult  to  understand  how  a  debtor  who  simply  pays  his 
debt  in  full  can  be  considered  the  victim  of  oppression  or  extortion  because 
such  payment  is  exacted  by  the  creditor  as  a  condition  of  his  signing  a  com- 
promise, or  to  see  how  both  the  debtor  and  creditor  are  not  in  pari  delicto." 
Per  Andrews,  J.,  in  Solinger  v.  Earle  (1880)  82  N.  Y.  .393. 


5G0  BENEFITS   CONFERRED  UNDER  COMPULSION  (Ch,  5 

by  all  who  unite  in  a  composition  deed,  are  well  known  and  well  settled, 
and  rest  upon  the  soundest  policy  and  upon  the  clearest  principles  of 
equity,  commercial  morality  and  fair  dealing.  The  temptation  to  ob- 
tain undue  or  secret  advantages  is  so  great  that  the  necessity  for  the 
severe  rules  which  have  been  declared  by  the  courts  to  repress  it,  is 
undeniable.  All  must  be  open  and  fair.^^  If  the  creditor  appealed 
to  by  his  debtor  makes  it  a  condition  of  his  uniting  in  a  composition 
that  he  shall  have  any  advantage  not  enjoyed  or  made  known  to  the 
others,  tlie  transaction  cannot  stand  either  at  law  or  in  equity ;  it  is  a 
fraud  upon  creditors,  and  they  can  avoid  it.  It  is  treated  as  oppression 
or  duress  toward  the  debtor,  and  he  may  defend  against  any  promise 
to  pay,  made  under  such  circumstances,  or,  if  he  has  actually  paid,  he 
may  recover  back  the  amount,  as  the  law  does  not  consider  the  parties 
in  pari  delicto,  nor  regard  such  payment  thus  made  as  voluntary,  and 
allows  such  recovery  on  grounds  of  public  policy."  ss     *     *     * 

In  Smith  v.  Cuff,  6  Maule  &  S'.  160,  it  appeared  that  the  defendant, 
being  a  creditor  of  the  plaintiff,  entered  into  a  composition  deed  with 
the  otlier  creditors,  to  receive  ten  shillings  on  the  pound,  under  an 
agreement  with  the  plaintiff  that  he  would  give  defendant  his  promis- 
sory note  for  the  remainder  of  the  debt,  which  notes  were  accordingly 
given  and  the  composition  was  paid  to  defendant,  and  he  negotiated 
the  promissory  note,  the  holder  of  one  of  which  enforced  payment  from 
plaintiff"  by  action,  and  it  was  held  that  plaintiff  might  recover  back  the 
amount  from  the  defendant  in  an  action  for  money  paid,  had  and 
received.  The  case  just  cited- is  like  the  one  now  under  consideration. 
Lord  Ellenborough,  Ch.  J.,  in  the  last  case,  said :  "This  is  not  a  case 
of  in  pari  delicto,  it  is  oppression  on  one  side  and  submission  on  the 
other,  it  never  can  be  predicated  as  pari  delicto  when  one  holds  the  rod 
and  the  other  bows  to  it.  There  is  an  inequality  of  situation  between 
these  parties — one  was  creditor  the  other  debtor — who  was  driven  to 
comply  with  the  terms  which  the  former  chose  to  enforce,  and  is  there 
any  case  where  money,  having  been  obtained  extorsively  and  by  op- 
pression, and  in  fraud  of  the  party's  own  act,  as  it  regards  the  other 
creditors,  it  has  been  held  that  it  may  not  be. recovered  back?  On  the 
contrary,  I  believe  that  it  has  been  uniformly  decided  that  an  action 
lies."  In  the  case  under  examination,  the  defendant,  as  in  the  case 
cited,  negotiated  the  note  before  maturity  to  an  innocent  holder  for 
value  and  without  notice ;  in  his  hands  there  was  no  defense  to  the 
note,  and  its  payment,  under  the  circumstances,  leaving  the  plaintiff  no 
other  option,  was  not  voluntary,  but  coercive. 

In  Wilson  v.  Ray,  10  Ad.  «&  Ell.  82,  it  appeared  that  the  plaintiff, 
being  about  to  compound  with  his  creditors,  defendant,  a  creditor,  re- 

6  7  In  Hickman  v.  Galveston  Dry  Goods  Co.  (1906)  42  Tex.  Civ.  App.  582,  94 
S.  W.  157,  the  court  held  that  an  arran^onxent  under  a  composition  agreement 
whereby  one  creditor  is  to  be  paid  in  full  is  valid,  if  fair  and  open;  the  vice 
of  such  special  agreements  being  in  their  secrecy. 

5  8  Citations  omitted. 


Sec.  4)  COMPULSION   COUPLED   WITH    ILLEGALITY  561 

fused  to  subscribe  the  deed  unless  he  were  paid  in  full.  Plaintiff,  to 
obtain  his  signature,  gave  a  bill  payable  to  defendant's  agents,  for  the 
difference  between  twenty  shillings  in  the  pound  and  eight  shillings, 
the  proportion  compounded  for;  defendant  then  signed  the  deed. 
Plaintiff  did  not  honor  the  bill  when  due,  but  on  subsequent  application 
he  paid  it  some  months  after  the  dishonor,  by  two  instalments  to  the 
payee,  and  defendant  received  the  money.  The  other  creditors  were 
paid  according  to  the  deed,  and  the  court  held  that  plaintiff  could  not 
recover  back  the  amount  paid  to  defendant  above  eight  shillings  in  the 
pound,  for  that  the  transaction  had  been  closed  by  a  voluntary  payment 
with  full  knowledge  of  the  facts,  and  ought  not  to  be  reopened ;  and 
that  it  made  no  difference  that  the  sum  in  question  had  not  been  re- 
covered by  action.  In  the  case  cited,  the  plaintiff  was  under  no  obliga- 
tion to  pay  the  bill.  It  was  held  at  maturity  by  the  payee,  and  the 
plaintiff,  with  full  knowledge  of  these  facts,  paid  the  amount  of  the  bill 
in  two  instalments.  The  plaintiff  having  the  option  whether  he 
would  pay  the  bill  or  not,  voluntarily  closed  the  transaction  by  pay- 
ment, and  there  was  no  reason  why  it  should  be  reopened.  ^^  But  in 
the  present  case  this  voluntary  element  is  wanting.  The  payment  was 
coerced  and  involuntary.    Smith  v.  Cuff,  supra. 

The  defendants  claim  that  the  case  of  Smith  v.  Cuff  does  not  apply 
to  this  case,  for  the  reason  that  the  note  was  given  after  the  defendant 
signed  the  composition  deed,  and  that  having  had  his  locus  poenitentiae, 
the  giving  of  the  note  was  relieved  from  the  effects  of  coercion  or 
duress,  and  cites  Atkinson  v.  Denby,  6  Hurl.  &  Nor.  778,  and  Higgins 
v.  Pitt,  4  Exch.  325,  to  sustain  his  position.  We  do  not  think  these 
cases  go  as  far  as  the  defendants  contend.  The  consideration  of  the 
note  was  fraudulent  for  the  reasons  stated,  and  although  given  after 
the  composition  deed  was  signed,  it  was  part  and  parcel  of  the  original 
corrupt  agreement  exacted  before  the  deed  was  signed,  as  a  condition 
for  its  execution,  and  there  is  nothing  in  the  case  to  take  it  out  of  the 
rule  laid  down  in  Smith  v.  Cuff,  supra. 

For  these  reasons  the  justice  at  the  trial  term  very  properly  found 
for  the  plaintiff,  and  the  judgment  rendered  by  him  is  therefore  affirm- 
ed with  costs  and  $30  allowance.*** 

5  9  Accord:  Smith  v.  Ziegler  (1892)  17  N.  T.  Supp.  338;  Batchelder  &  Lin- 
coln Co.  V.  Whitmore  (1903)  122  Fed.  355,  58  C.  C.  A.  517. 

«o  Upon  appeal,  the  Court  of  Common  Pleas  adopted  the  opinion  of  McAdam, 
J.,  and  affirmed  the  judgment  (1875)  6  Daly,  95,  100. 

Accord  :    Crossley  v.  Moore  (1878)  40  N.  J.  Law,  27. 

In  Atkinson  v.  Denby  (1862)  7  II.  &  N.  9.']3,  Cockbum,  C.  J.,  said:  "Where 
the  one  person  can  dictate,  and  the  other  has  no  alternative  but  to  submit,  it 
is  coercion,  and,  in  the  langiiage  of  Lord  Ellenborough,  'one  holds  the  rod  and 
the  other  bows  to  it.'  Smith  v.  Cuff  (1817)  0  M.  &  S.  105.  Whore  a  debtor 
offers  his  creditors  a  composition,  whereby  they  are  all  to  receive  the  same 
proportionate  amount  in  respect  of  their  debts,  it  is  contrary  to  the  policy  of 
the  law  to  allow  him  to  purchase  the  consent  of  one  creditor  by  payment  of 
his  debt  in  full.     It  is  said  that  both  parties  are  in  pari  delicto.     It  is  true 

TnuES.QuAsi  CoNT. — 36 


502  BENEFITS   CONFERRED  UNDER  COMPULSION  (Ch.  5 

DAIMOUTH  V.  BENNETT." 

(Supreme  Court  of  New  York,  General  Term,  1853.     15  Barb.  541.) 

This  action  was  orig-inally  brought  in  a  justice's  court.  The  plaintiff 
alleged  in  his  complaint  that  the  defendant  was  justly  indebted  to  him 
in  the  sum  of  thirty  dollars,  for  money  had  and  received  by  the  defend- 
ant to  the  plaintiff's  use.  The  answer  denied  the  indebtedness,  and  set 
up  matters  of  defense  upon  the  merits.  The  justice  rendered  judgment 
in  favor  of  the  plaintiff,  for  the  amount  claimed,  with  costs.  This 
judgment  was  affirmed  by  the  county  court.  The  facts  of  the  case  are 
as  follows :  The  plaintiff's  son  William  was  charged  by  the  defendant 
with  having  passed  to  him  a  ten  dollar  counterfeit  or  altered  bank  note ; 
a  warrant  had  been  issued  against  him,  and  he  had  been  arrested  on 
said  charge.  While  he  was  under  such  arrest,  the  parties  to  this  action 
made  an  agreement,  by  which  the  plaintiff  promised  to  pay  and  did 
pay  the  defendant  thirty  dollars,  to  settle  the  criminal  prosecution 
against  the  plaintiff's  son,  on  said  charge.  The  defendant,  in  consid- 
eration thereof,  agreed  to  let  the  prisoner  go  and  not  to  prosecute  him 
furtlier  on  said  charge,  and  he  was  accordingly  discharged.  Prior  to 
commencing  this  action,  the  plaintiff  called  on  the  defendant  and  de- 
manded the  repayment  of  the  thirty  dollars.  It  also  appeared  from 
the  testimony  of  the  plaintiff's  son  William,  that  he  never  passed  the 
bill  to  the  defendant;  neither  had  he  passed  any  bill  to  him,  or  paid 
him  any  money  at  any  time  prior  to  said  complaint.  There  was  no 
conflict  of  evidence  in  the  case.  When  the  plaintiff  closed  his  proof, 
the  defendant  moved  for  a  nonsuit,  on  the  ground  that  the  plaintiff 
had  failed  to  make  out  a  legal  pause  of  action,  which  was  denied, 

that  both  are  in  delicto,  because  the  act  is  a  fraud  upon  the  other  creditors, 
but  it  is  not  par  delictum,  because  the  one  has  the  power  to  dictate,  the  other 
no  alternative  but  to  submit." 

See  also  the  excellent  discussion  of  this  principle  by  Lowell,  J.,  in  In  re 
Chaplin  (D.  C.  1902)  115  Fed.  162.  165. 

In  Solinser  v.  Earle  (ISSO)  82  N.  Y.  393,  it  was  held  that  a  secret  pay- 
ment by  a  brother-in-law  of  the  debtor  to  induce  a  creditor  to  sign  a  composi- 
tion agreement  could  not  be  recovered  back ;  Andrews,  J.,  who  delivered 
the  opinion  of  the  court,  saying:  "We  see  no  ground  upon  which  it  can  be 
held  that  the  plaintiff  in  this  case  was  not  in  par  delictum  (sic)  in  the 
transaction  with  the  defendants.  So  far  as  the  complaint  shows,  he  was 
a  volunteer  in  entering  into  the  fraudulent  agreement.  It  is  not  even  alleged 
that  he  acted  at  the  request  of  the  debtor.  And  in  respect  to  the  claim  of 
duress,  upon  which  Smith  v.  Bromley,  2  Doug.  696  note,  was  decided, 
we  are  of  the  opinion  that  the  doctrine  of  that  and  the  subsequent  cases  re- 
ferred to  can  only  be  asserted  in  behalf  of  the  debtor  himself,  or  of  a  wife  or 
husband,  or  near  relative  of  the  blood  of  the  debtor,  who  intervenes  in  his 
behalf  and  that  a  person  in  the  situation  of  the  plaintiff,  remotely  related 
by  marriage,  with  a  debtor,  who  pays  money  to  a  creditor  to  induce  him  to 
sign  a  composition,  cannot  be  deemed  to  have  paid  under  duress  by  reason  sim- 
ply of  that  relationship,  or  of  the  interest  which  he  might  naturally  take  in  his 
relative's  affairs." 

«i  The  principal  case,  which  might  logically  belong  under  chapter  III,  sec- 
tion 2,  supra,  is  inserted  here  for  purposes  of  contrast. 


Sec.  4)  COMPULSION   COUPLED   WITH   ILLEGALITY  563 

Crippi:n,  p.  J.  The  case  presents  the  single  point,  whether  money 
paid  for  the  purpose  of  settling  or  compounding  a  supposed  felony- 
can  be  recovered  back  by  the  party  paying  it.  It  was  insisted  by  the 
plaintiff's  counsel  that  there  is  no  statute,  or  principle  of  the  common 
law,  declaring  the  payment  of  money  to  compound  a  felony  a  crime, 
in  the  party  thus  paying  the  money ;  that  it  is  the  taking  or  receiving 
of  the  money,  and  not  the  payment  of  it,  that  constitutes  the  offense. 
It  is  true  that  the  statute  only  declares  the  party  guilty  of  a  crime,  who 
knowing  of  the  actual  commission  of  a  felony,  shall  take  any  money  or 
property  of  another,  upon  an  agreement  or  undertaking  to  compound 
or  conceal  such  felony  or  crime,  or  to  abstain  from  any  prosecution 
thereof.  2  R.  S.  4th  ed.  p.  871,  pt.  4,  c.  1,  tit.  5,  §  18;  also  page  875, 
tit.  6,  §12. 

The  offense  of  compounding  a  crime  created  by  statute,  is  undoubt- 
edly confined  to  the  party  receiving  the  money  or  property,  and  does 
not  extend  to  the  party  paying  it.  This  position  of  the  plaintiff's  coun- 
sel, however,  falls  far  short  of  reaching  the  whole  difficulty  in  his  case. 
Another  important  principle  is  involved,  which  to  my  mind  is  a  conclu- 
sive answer  to  this  action.  The  contract  made  between  the  parties, 
and  the  payment  of  the  money  under  it,  was  immoral  and  illegal.  The 
statute  above  cited  declares  the  party  receiving  the  money  under  such 
circumstances  a  criminal.  The  common  law  declares  all  contracts  to 
do  acts  that  are  indictable  or  punishable  criminally,  to  be  illegal  and 
void.  It  is  a  fundamental  rule  of  the  common  law,  tliat  whenever  a 
contract  is  illegal  as  against  morality  or  public  policy,  neither  a  court 
of  law  nor  a  court  of  equity  will  interpose  to  grant  relief  to  the  parties 
thereto.  It  is  manifest  that  the  contract  under  which  the  plaintiff  paid 
his  money  to  the  defendant,  was  malum  in  se,  involving  criminality 
and  moral  turpitude;  it  rendered  the  defendant  liable  to  indictment 
and  criminal  punishment.  If  a  contract  be  evil  in  itself,  involving 
criminality  and  moral  turpitude,  neither  party  to  such  contract  can 
have  any  remedy  against  the  other;  nor  can  money  paid  upon  such 
contract  be  reclaimed  by  law  or  in  equity.  Story  on  Cont.  §§  489,  490. 
The  same  author  also,  lays  down  the  rule  of  law,  that  if  a  sum  of  money 
be  paid  by  way  of  compounding  a  felony,  it  cannot  be  recovered  back, 
on  a  refusal  of  the  other  party  to  perform  his  part  of  the  contract; 
nor  can  an  action  be  maintained  to  enforce  the  performance  of  such 
contract.  If  the  money  cannot  be  recovered  back  for  a  refusal  of  the 
party  receiving  it  to  perform  his  part  of  the  agreement,  it  would  seem 
very  clearly  to  follow,  that  where  the  contract  has  been  fully  perform- 
ed as  agreed  upon  between  the  parties,  no  action  can  be  maintained  to 
recover  back  the  money.  No  proof  was  given  on  die  trial  that  the  de- 
fendant did  not  keep  his  agreement  with  the  plaintiff.  It  appeared  that 
nothing  further  was  done  with  the  criminal  prosecution  against  the 
plaintiff's  son ;  the  payment  of  the  money  by  the  plaintiff  to  the  de- 
fendant, put  an  end  to  the  whole  matter;   the  strong  arm  of  the  law 


5G4  BENEFITS  CONFERRED  UNDER  COMPULSION         (Cll.  5 

was  paralyzed  thereby,  and  the  plaintiff's  son  was  discharged  from  the 
arrest  on  the  warrant. 

Where  a  contract  is  malum  prohibitum — merely  evil  because  it  is 
prohibited  by  statute,  and  does  not  involve  any  moral  turpitude  or 
criminality — one  party  may  have  a  remedy  against  the  other,  unless 
they  are  in  pari  delicto.  But  no  relief  will  be  granted  even  in  such  a 
case  if  the  parties  are  both  involved  in  moral  guilt.  Agreements  to  do 
acts  which  are  indictable  or  punishable  criminally,  or  to  conceal  or 
compound  such  acts  ;  or  to  suppress  evidence  in  a  criminal  prosecution, 
are  utterly  void.  Story  on  Cont.  §  569.  Also  all  agreements  which 
contravene  public  policy  are  void,  whether  they  be  in  violation  of  law 
or  morals,  or  obstruct  the  prospective  objects  flowing  from  some  posi- 
tive legal  injunction.     Story  on  Cont.  §  545. 

The  money  paid  by  the  plaintiff  to  tlie  defendant  was  intended  to 
obstruct,  and  as  the  proof  shows,  did  in  fact  obstruct  and  put  an  end  to 
the  prosecution  of  the  plaintiff's  son,  who  had  been  accused  and  even 
arrested  for  a  high  crime.  The  plaintiff  was  a  party  to  the  agreement ; 
he  paid  the  money  to  the  defendant;  he  was  a  particeps  criminis  with 
the  defendant,  connected  with  him  in  committing  an  act  declared  by 
statute  to  be  criminal,  and  which  subjected  the  defendant,  if  not  the 
plaintiff,  to  criminal  prosecution. 

Whenever  a  contract  is  forbidden  of  the  common  law  or  by  statute, 
no  court  will  lend  its  aid  to  give  it  effect.  Chitty  on  Cont.  570.  The 
same  author  also  says  that  an  agreement  for  suppressing  evidence,  or 
stifling  or  compounding  a  criminal  prosecution,  or  proceeding  for  a 
felony  or  for  a  misdemeanor  of  a  public  nature,  is  void.  Chitty  on 
Cont.  582.  It  matters  not  whether  the  plaintiff's  son  w^as  guilty  or 
innocent  of  the  charge  made  against  him  by  the  defendant;  he  had 
been  arrested  on  a  criminal  warrant,  charging  him  with  a  felony ;  while 
thus  a  prisoner  the  plaintiff  compounded  the  oft'ense  and  stifled  the 
prosecution,  by  the  payment  to  the  defendant  of  the  money  now  sought 
to  be  recovered  back  in  this  action.  It  was  undoubtedly  immoral,  nay, 
criminal  in  the  defendant  to  take  the  plaintiff's  money  under  tlie  agree- 
ment upon  which  it  was  paid  to  him ;  this,  however,  furnishes  no  legal 
ground  to  the  plaintiff  for  recovering  back  the  money.  He  is  too  deep- 
ly implicated  in  the  wrong  committed,  by  compounding  the  alleged  felo- 
ny, to  command  the  aid  of  the  law  and  of  the  courts,  in  restoring  him  to 
w^hat  he  has  wrongfully  and  foolishly  paid  to  the  defendant.  There 
were  some  cases  at  an  early  day  which  seemed  to  hold  the  doctrine 
that  where  a  party  paid  money  upon  an  illegal  transaction,  he  might 
recover  it  back  again  in  an  action  for  money  had  and  received.  But  it 
has  been  holden  in  numerous  cases,  both  in  England  and  in  this  coun- 
try, that  in  cases  where  money  has  been  paid  upon  a  consideration  like 
tiiat  established  by  the  proof  in  this  case,  it  cannot  be  recovered  back 
in  an  action  for  money  had  and  received.  In  the  cases  of  Smith  v. 
Bromley,  Doug.  696,  and  Browning  v.  Morris,  Cowp.  790,  Lord  Mans- 
field decided  that  Avhere  certain  acts  were  declared  unlawful  by  statute, 


Sec.  4)  COMPULSION   COUPLED   WITH    ILLEGALITY  565 

intended  to  protect  the  unwary  and  the  ignorant  from  the  oppression 
and  extortion  of  the  more  designing  and  cunning,  there,  although  both 
parties  were  guihy  of  violating  the  law,  yet  they  are  not  equally  guilty ; 
and  in  such  cases  the  money  might  be  recovered  back  by  the  party  from 
whom  it  had  been  extorted,  as  in  case  of  taking  usury,  &c.  The  learn- 
ed judge  also  says  that  these  cases  are  distinguishable  from  those 
which  have  held  that  money  paid  on  account  of  the  immorality  of  the 
consideration,  involving  moral  turpitude,  or  hostile  to  public  policy, 
cannot  be  recovered  back.  There  are  many  cases  which  maintain  the 
doctrine,  and  such  no  doubt  is  the  settled  law,  that  where  a  contract  is 
made  having  for  its  ultimate  purpose  and  intent,  to  aid  in  violating  a 
positive  law  or  principle  of  public  policy,  or  to  commit  a  breach  of 
good  morals,  the  courts  will  not  assist  in  enforcing  it,  whatever  may 
seem  to  be  the  justice  of  it  as  between  the  parties.  In  such  a  case  the 
courts  treat  both  parties  as  having  trodden  upon  forbidden  ground, 
equally  in  the  wrong,  and  as  being  unworthy  alike  to  ask  for  or  receive 
their  aid.  In  this  case  the  parties  deliberately  agreed  to  violate  the 
laws  of  the  land ;  the  plaintiff  by  paying  and  the  defendant  by  receiv- 
ing the  sum  of  thirty  dollars  to  compound  an  alleged  felo^ny;  to  stifle 
and  discontinue  a  prosecution  already  commenced  against  the  accused, 
for  a  high  crime.  A  party  who  thus  illegally  and  improperly  pays 
away  his  money,  and  afterwards  repents  of  his  folly,  and  attempts  by 
an  action  to  recover  it  back,  cannot  receive  the  aid  of  a  court  of  justice 
in  such  attempt. 

I  have  come  to  the  conclusion,  from  a  careful  examination  of  this 
case,  that  the  plaintiff  failed  in  establishing  a  legal  cause  of  action 
against  the  defendant.  The  judgment  of  the  justice's  court  and  of  the 
county  court  must  be  reversed,  with  costs  of  the  appeal  in  the  county 
court  and  in  this  court.®^ 

62  In  Schultz  V.  Culbertson  (1879)  46  Wis.  313,  1  N.  W.  19,  Lyon,  J.,  said: 
"The  agreement  not  to  arrest  and  prosecute  the  plaintiff's  son  for  the  crime 
which  the  defendant  charged  he  had  committed,  was  miquestionably  illegal 
and  void,  in  that  it  interfered  directly  with  the  course  of  public  ju.stice,  and 
was  therefore  against  sound  public  policy.  Such  agreement  was  fully  ex- 
ecuted by  the  giving  of  the  note  in  consideration  thereof,  and  its  payment ; 
and  by  the  failure  of  the  defendant  to  cause  the  arrest  and  pro.secution  of  the 
boy.  The  undisputed  evidence  shows  that  the  crime  had  been  committed,  and 
the  testimony  of  the  defendant  tends  to  show  that  the  boy  committed  it.  If 
the  parties  to  this  illegal  agreement  stood  on  an  equal  footinig  when  they  made 
it, — if  there  was  no  duress  or  other  circumstance  which  plac-ed  the  plaintiff 
in  the  attitude  of  a  sufferer  rather  than  a  wrongdoer, — the  law  will  not  assist 
the  plaintiff'  to  recover  the  money  which  he  has  voluntarily  paid  in  execution 
of  it.  Miller  v.  Larson,  19  Wis.  4G3.  In  such  case  it  is  quite  immaterial 
that  the  plaintiff  did  not  believe  his  son  guilty  of  the  crime  charged.  Tliat  is 
a  fact  to  be  considered  on  the  question  of  duress  (Osborn  v.  Robbins,  36 
N,  Y.  365),  but  not  on  the  question  of  the  illegality  of  the  contract.  The  crime 
having  been  committed,  and  the  boy  being  charged  with  having  committed  it, 
and  his  arrest  therefor  threatened,  a  contract  to  forbear  prosecution  is  illegal, 
no  matter  how  sincerely  the  plaintiff  may  have  believed  his  son  innocent." 


566  BENEFITS  CONFERRED  UNDER  COMPULSION         (Ch.  5 

HECKMAN  V.  SWARTZ. 

(Supreme  Court  of  Wisconsin,  1SS5.     G4  Wis.  48,  24  N.  W.  473.) 

Appeal  from  circuit  court,  Green  county. 

This  action  was  brought  to  recover  $1,635,  alleged  to  have  been 
obtained  from  the  plaintiff  by  the  defendant,  by  duress  of  imprison- 
ment, upon  a  warrant,  issued  upon  complaint  of  the  defendant,  falsely 
charging  the  plaintiff  with  having  committed  the  crime  of  fornication 
with  one  Mary  Jane  Swartz,  the  daughter  of  the  defendant,  and  by 
threats  of  future  and  further  prosecutions  therefor.  The  cause 
was  tried,  and  a  special  verdict  returned  by  the  jury.  The  plain- 
tiff moved  on  such  verdict  for  judgment  against  the  defendant.  The 
motion  was  denied.  The  plaintiff  then  interposed  a  motion  to  set  aside 
the  verdict,  and  for  a  new  trial,  which  motion  was  also  denied,  and  the 
court  thereupon  gave  judgment  for  the  defendant.  One  of  the  facts 
specially  found  by  the  jury  was  that  defendant  instituted  the  criminal 
proceedings  against  the  defendant  for  the  purpose  of  compelling  him 
to  make  the  settlement  in  question. 

Lyon,  J.^^  j  *  *  *  q^j.  conclusions  on  this  branch  of  the  case 
are  that  the  complaint  charges  a  crime;  that  the  justice  had  jurisdic- 
tion to  issue  the  warrant;  that  such  warrant  is  valid,  and  hence  that 
the  plaintiff'  was  lawfully  arrested. 

II.  The  denial  by  the  court  of  the  plaintiff's  motion  for  judgment  on 
the  special  verdict  is  assigned  for  error.  This  presents  the  question,  is 
the  judgment  for  the  defendant  supported  by  such  verdict?  We  un- 
derstand tlie  law  to  be  well  settled  that,  although  an  arrest  may  be  for 
a  just  cause,  and  under  valid  process,  yet  if  it  be  for  an  illegal  purpose, 
and  the  person  arrested  pays  money  for  his  release,  he  may  be  consid- 
ered as  having  paid  it  by  duress  of  imprisonment,  and  may  recover  it 
back.  It  was  so  held  in  Richardson  v.  Duncan,^*  3  N.  H.  503 ;  Sever- 
ance V.  Kimball,  8  N.  H.  386;  and  in  Hackett  v.  King,  6  Allen  (Mass.) 
58.  So  in  Bull.  N.  P.  (7th  Ed.)  172,  it  is  said:  'Tf  the  arrest  were  by 
warrant  from  a  justice  of  the  peace  on  a  charge  of  felony,  *  *  * 
though  a  felony  were  committed,  yet  if  the  arrest  be  unlawfully  made 
use  of,  it  may  be  construed  a  duress." 

We  have  already  seen  that  the  plaintiff  was  arrested  under  valid 
process,  and  the  jury  found  that  it  was  for  just  cause.  But  they 
found,  also,  that  the  defendant  instituted  the  criminal  proceedings  for 
the  purpose  of  compelling  the  plaintiff  to  make  the  settlement  under 
which  he  paid  the  defendant  the  money  he  seeks  to  recover  back  in  this 

03  The  statement  of  the  case  is  abridged,  and  portions  of  the  opinion  are 
omitted. 

6*  "But  it  is  now  well  settled,  that  when  there  is  an  arrest  for  improper 
purposes,  without  a  just  cause,  or  where  there  is  an  arrest  for  a  just  cause; 
but  witliout  lawful  authority,  or  where  there  is  an  arrest  for  a  just  cause, 
and  under  lawful  authority,  for  unlawful  purposes,  it  may  be  construed  a 
duress."     Richardson  v.  Duncan  (1S26)  3  N.  H.  508. 


Sec.  4)  COMPULSION   COUPLED   WITH   ILLEGALITY  567 

action ;  and  that  the  money  was  paid  (or,  what  is  the  same  thing,  the 
note  of  the  Musser  Bros,  was  dehvered)  under  an  agreement  between 
the  parties  that  the  defendant  would  not  and  should  not  prosecute  the 
plaintiff  for  any  criminal  offense. 

The  purpose  for  which  the  prosecution  was  instituted  was  unlawful. 
It  was  not  to  vindicate  the. peace  and  dignity  of  the  state  in  any  way, 
or  to  promote  the  public  welfare,  but  to  coerce  the  plaintiff  to  pay  a 
claim  which  he  was  unwilling  to  pay.  This  was  an  abuse  of  the  process 
of  the  court.  Then,  in  order  to  accomplish  such  unlawful  purpose,  he 
agreed  not  to  prosecute  the  plaintiff  for  any  crime.  This  also  was  un- 
lawful. It  is  equally  illegal  to  compound  a  felony  or  a  misdemeanor. 
Severance  v.  Kimball,  supra,  and  cases  there  cited.  See,  also.  Fay  v. 
Oatley,  6  Wis.  42. 

The  purpose  of  the  prosecution  thus  being  unlawful,  and  the  money 
having  been  paid  pursuant  to  an  unlawful  agreement,  if  the  plaintiff 
paid  it  for  his  release,  it  is  duress  of  imprisonment,  and  he  is  entitled 
to  recover  his  money.  But  there  are  findings  which  change  entirely 
the  aspect  of  the  case.  One  of  these  is  to  the  efTect  that  the  plaintiff 
did  not  make  the  payment  to  the  defendant  until  after  he  was  released 
from  imprisonment  and  arrest.  This  is  a  most  vital  finding  in  the  case, 
for  it  shows  that  the  actual  duress  had  ceased  before  the  payment,  and 
there  was  left  for  the  determination  of  the  jury  only  the  question 
suggested  in  Schultz  v.  Culbertson,  46  Wis.  313,  1  N.  W.  19,  whether 
the  original  duress,  or,  more  correctly  speaking,  the  effect  of  it  upon 
the  plaintiff's  mind,  continued  and  influenced  him  to  pay  the  money, 
although  the  actual  imprisonment  had  ceased,  or  whether  he  paid  il 
freely  and  voluntarily,  uninfluenced  by  such  former  imprisonment. 
On  that  proposition  the  jury  have  found,  in  a  variety  of  forms,  tha*. 
the  payment  was  thus  freely  and  voluntarily  made.  Hence,  while 
facts  are  found  which  show  at  one  time  duress  of  imprisonment,  other 
findings  show,  in  effect,  that  after  such  duress  and  the  influence  of  it 
had  ceased,  the  plaintiff  freely  and  voluntarily  paid  the  money  which 
he  now  sues  to  recover  back.  We  think  the  special  verdict  supports 
the  judgment  for  the  defendant  and  hence  that  it  was  not  error  to  deny 
the  plaintiff's  motion  for  judgment.®^ 

The  judgment  must  be  reversed,  and  the  cause  remanded  for  a  new 
trial.«« 


65  The  court,  however,  ordered  a  new  trial  on  the  ground  that  the  finding  of 
fact  in  the  special  verdict  to  the  effect  that  the  iniprisoiuueut  of  the  plainlifC 
had  ceased  liefore  he  made  the  payment  to  the  defendant  was  wholly  unsup- 
ported by  the  evidence. 

8  8  In  Morse  v.  Wood  worth  (1S92)  155  Mass.  233,  251,  29  N.  E.  522,  529. 
Knowlton,  J.,  for  the  court,  said  :  "It  lias  sometimes  Ijeen  held  that  tlireats  of 
imprisonment,  to  constitute  duress,  must  be  of  unlawful  imprisonment:.  Hut 
the  question  is  whether  the  threat  is  of  imprisonment  which  will  be  unlawful 
in  reference  to  the  conduct  of  the  threatener,  who  is  seeking  to  obtain  a  con- 
tract by  his  threat.  Imprisonment  that  is  suffered  through  the  execution  of 
a  threat  which  was  made  for  the  purpose  of  forcing  a  guilty  person  to  enter 


5G8  BENEFITS   CONFERRED   UNDER   COMPULSION  (Ch.  5 

into  a  contract  may  be  lawful  as  against  the  authorities  and  the  public,  but 
unlawlul  as  against  the  threatener,  when  considered  in  reference  to  his  effort 
to  use  for  his  private  benetit  processes  provided  for  the  protection  of  the  pub- 
lic and  the  punishment  of  crime.  One  who  has  overcome  the  mind  and  will 
of  another  for  his  own  advantage,  under  such  circumstances,  is  guilty  of  a 
perversion  and  abuse  of  laws  which  were  made  for  another  purpose,  and  he  is 
in  no  position  to  claim  the  advantage  of  a  formal  contract  obtained  in  that 
way,  on  the  ground  that  the  rights  of  the  parties  are  to  be  determined  by  their 
language  and  their  overt  acts,  without  reference  to  the  influences  which  moved 
them.  In  such  a  ease  there  is  no  reason  why  one  should  be  bound  by  a  con- 
tract obtained  by  force,  which  in  reaUty  is  not  his,  but  another's." 

In  Haynes  v.  Rudd  (1SS6)  102  N.  Y.  372,  7  N.  E.  287,  55  Am,  Rep.  815,  the 
plaintiff's  son  had  been  in  the  employ  of  the  defendant  as  clerk,  and  it  was 
claimed  that  he  had  feloniously  taken  and  carried  away  money  from  his  em- 
ployer. A  crLiuinal  prosecution  was  tlireatened,  and  to  prevent  such  prosecu- 
tion plaintiff  gave  his  note  for  ^250  to  the  defendant,  who  transferred  it,  be- 
fore it  was  due,  to  a  purchaser  in  good  faith,  to  whom  the  plaintiff  was  obliged 
to  pay  it.  Action  was  brought  to  recover  back  the  money  so  paid.  The  court, 
per  Miller,  J.,  reversing  a  judgment  for  plaintiff  and  ordering  a  new  trial, 
laid  down  the  rule  that:  "If  the  considei'ation  of  the  note  was  in  any 
way  affected  by  the  compounding  of  a  felony,  or  it  entered  into  the  same, 
or  such  a  motive  actuated  the  plaintiff,  in  any  respect,  then  the  contract 
was  illegal,  and  should  not  be  upheld.  In  such  a  case  the  contract  was  vicious 
and  corrupt,  and  in  violation  of  law  as  much  as  if  compounding  a  telony  had 
been  the  entire  consideration.  The  element  of  illegality  constituted  a  part  of 
the  contrac-t,  thus  vitiating  the  whole,  and  it  could  not  be  rejected  because 
duress,  undue  influence  or  threats  were  also  blended  \vith  it.  ♦  ♦  *  We  cannot 
agree  with  the  doctrine  that  if  the  plaintiff  was  influenced  by  duress  of  the 
defendant,  and  at  the  same  time  both  parties  intended  the  compounding  of  a 
felony,  that  they  were  not  in  pari  delicto.  It  is  enough  that  the  vice  of  com- 
ix>unding  a  felony  was  a  part  of  the  contract,  operating  upon  the  minds  of 
both  parties,  and  thus  placing  them  upon  an  equalitj',  to  render  the  contract 
nugatory  and  of  no  effect." 

But  see  Schoener  v.  IJssauer  (1887)  107  N.  Y.  Ill,  13  N.  E.  741. 

Compare  State  ex  rel.  Pearson  v.  Cornell  (1S9S)  54  Neb.  647,  75  N.  W.  25. 

Duress  by  Threats  of  Imprisonment.— "Duress  at  the  common  law  is  of 
two  kinds — duress  by  imprisonment,  and  duress  by  threats.  Some  of  the  defi- 
nitions of  duress  per  minas  are  not  broad  enough  to  include  constraint  by 
threats  of  imprisonment.  But  it  is  well  settled  that  threats  of  unlawful  im- 
prisonment may  be  made  the  means  of  duress  as  well  as  threats  of  grievous 
lx)dily  harm.  The  rule  as  to  duress  per  minas  has  now  a  broader  application 
than  formex'ly.  It  is  founded  on  the  principle  that  a  contract  rests  on  the  free 
and  voluntary  action  of  the  minds  of  the  parties  meeting  in  an  agreement 
which  is  to  be  binding  upon  them.  If  an  influence  is  exerted  on  one  of  them 
of  such  a  kind  as  to  overcome  his  will,  and  compel  a  formal  assent  to  an  un- 
dertaking when  he  does  not  really  agree  to  it,  and  so  to  make  that  appear  to 
be  his  act  which  is  not  his,  but  another's,  imposed  on  him  through  fear  which 
deprives  him  of  self-control,  there  is  no  contract  unless  the  other  deals  with 
him  in  good  faith,  in  Ignorance  of  the  improper  influence,  and  in  the  belief 
that  he  is  acting  voluntarily.  To  set  aside  a  contract  for  duress,  it  must  be 
shown,  first,  that  the  will  of  one  of  the  parties  was  overcome,  and  that  he 
was  thus  subjected  to  the  power  of  another,  and  that  the  means  used  to  in- 
duce him  to  act  were  of  such  a  kind  as  would  overcome  the  mind  and  will  of 
an.  ordinary  person.  It  has  often  been  held  that  threats  of  civil  suits  and  of 
ordinary  proceedings  against  property  are  not  enough,  because  ordinary  per- 
sons do  not  cease  to  act  voluntarily  on  account  of  such  threats.  But  threats 
of  imprisonment  may  be  so  violent  and  forceful  as  to  have  that  effect,"  Morse 
V.  Woodworth,  supra. 

See,  also,  Coon  v.  Metzler  (1915)  161  Wis.  328,  154  N.  W.  377. 

But  see  Rendleman  v.  Rendleman  (1895)  156  111.  568,  41  N.  E.  223.  ("Threats 
of  imprisonment,  for  which  there  is  no  ground,  do  not  constitute  duress,  as  the 
person  threatened  could  not  be  put  in  fear  thereby.  Nor  do  threats  of  criminal 
prosecution  constitute  duress  when  neither  warrant  has  been  issued  nor  pro- 
ceedings commenced.")    Harmon  v.  Harmon  (1S73)  61  Me.  227,  14  Am.  Rep.  556. 


Sec.  4)  COMPULSION   COUPLED   WITH    ILLEGALITY  569 


SMITH  V.  BLACHLEY. 

(Supreme  Court  of  Pennsylvania,  1898.     188  Pa.  550,  41  Atl.  619.  68  Am.  St. 

Rep.  887.) 

Assumpsit  to  recover  money  had  and  received.    Before  McClung,  J. 

After  plaintiff's  evidence  was  all  in  the  trial  court  entered  a  compul- 
sory nonsuit  which  it  refused  to  take  off.    Plaintiffs  appeal. 

Dean,  J.*^  Blachley,  the  defendant,  a  physician,  practiced  his  pro- 
fession in  the  years  1888  and  1889  in  Morris  township,  Washington 
county.  In  the  adjoining  township  lived  Joseph  Beabout,  farmer,  his 
wife,  and  daughter  Alice,  the  latter  a  single  woman;  also,  John  Mc- 
Cullough,  farmer,  his  wife  and  son.  Blachley  was  at  times  called  in  as 
a  physician  to  both  families,  where  they  lived  in  tlie  country,  about 
three  miles  apart,  while  the  physician's  office  was  about  five  miles  from 
both.  In  February,  1887,  Blachley  was  called  in  to  attend  Alice,  the 
daughter  of  Beabout,  in  an  illness  which  he  said  was  the  result  of  a 
criminal  abortion. 

About  February  or  March,  1888,  after  she  was  restored  to  health,  he 
called  upon  McCullough,  and  soon  after  upon  Beabout,  and  represented 
to  them  that  the  Humane  Society  of  Pittsburgh  was  about  to  institute 
a  criminal  prosecution  against  the  members  of  both  families  for  pro- 
curing the  abortion,  and  suggested  to  them  that  he  was  in  conference 
with  the  agent  of  the  society,  and  that  the  matter  might  through  him 
be  hushed  up  by  their  paying  over  to  him  the  sum  of  $3,000,  which  he 
would  give  to  the  agent  to  stop  further  inquiries.  Several  interviews 
were  subsequently  had,  in  which  the  representations  were  repeated. 
He  dwelt  largely  on  the  disgrace  which  such  a  prosecution  would  bring 
on  both  families,  and  further  offered  to  assist  them  in  obtaining  the 
money  through  a  bank  in  the  town  of  Washington.  On  the  15th  of 
May  following,  Beabout  and  McCullough  went  to  Washington,  met 
Blachley,  got  the  money  from  the  bank,  and  paid  it  over  to  him.  He 
told  them  the  agent  of  the  society  had  not  yet  arrived,  but,  when  he 
came,  he  (Blachley)  would  pay  the  money  to  him,  and  take  his  receipts. 
Afterwards  he  advised  them  frequently  to  keep  quiet  concerning  the 
matter ;  to  tell  no  one ;  not  to  employ  counsel  or  advise  with  others,  or 
trouble  might  result. 

Deterred  by  this  advice  and  caution,  they  made  no  inquiries  until  a 
short  time  before  this  suit  was  brought,   16th  of  November,   1895, 

(Mere  threats  of  criminal  prosecution  do  not  constitute  duress  without  threats 
of  immediate  imprisonment.) 

See,  also,  Sulzner  v.  Cappeau,  Lemley  &  Miller  Co.  (1912)  234  Pa.  162,  83 
Atl.  103,  .39  L.  R.  A.  (N.  S.)  421. 

In  Wilbur  v.  Blanchard  (1912)  22  Idaho,  517,  126  Pac.  10G9,  the  court  held 
that  money  extorted  from  plaintiff  by  defendant  by  threats  of  unlawful  arrest 
and  imprisonment  could  not  be  recovered,  if  the  same  was  in  fact  due  from 
plaintiff  to  defendant  Compare  City  of  Chicago  v.  Malkan,  note  page  534, 
supra. 

67  A  portion  of  the  oriinion  is  omitted. 


.570  BENEFITS  CONFERRED  UNDER  COMPULSION         (Ch.  5 

Then  McCuIlough  (Beaboiit  having  died  in  the  meantime)  discovered 
that  no  prosecution  had  been  contemplated  by  the  Humane  Society, 
and,  so  far  as  could  be  discovered,  it  had  neither  knowledge  of  nor 
authority  to  institute  such  prosecution ;  further,  that  Blachley  had 
pocketed  the  money,  and  still  retained  it ;  that  the  whole  story  narrated 
by  him,  from  beginning  to  end,  was  a  tissue  of  falsehoods,  concocted  to 
extort  money  from  them.  The  plaintiff  offered  ample  evidence  tend- 
ing to  establish  these  facts.  As  the  court  below  entered  a  compulsory 
nonsuit,  we  must  consider  them,  for  the  purpose  of  review,  as  fully 
proved. 

The  defendant,  in  addition  to  non  assumpsit,  pleaded  the  statute  of 
limitations.  The  court  below  sustained  the  latter  plea,  saying:  "Under 
the  circumstances,  their  [the  plaintiffs']  right  of  action  against  Blach- 
ley accrued,  and  the  statute  of  limitations  began  to  run,  as  soon  as  the 
money  was  paid  to  him.  They  cannot  be  heard  to  say  that  he  commit- 
ted a  fraud  upon  them  by  failing  to  consummate  an  arrangement  which 
was  in  itself  a  fraud  upon  the  administration  of  justice.  The  plaintiffs 
are  the  parties  who,  to  maintain  their  action,  are  compelled  to  uncover 
and  invoke  the  aid  of  the  corrupt  agreement.  This  being  the  case,  they 
cannot  profit  by  it,  either  directly,  as  the  foundation  of  an  action,  or 
by  using  it  to  toll  the  statute." 

Is  this  conclusion  warranted  by  the  facts?  It  is  the  policy  of  the 
law  to  leave  parties  to  an  illegal  transaction  where  it  finds  them,  by 
refusing  relief  to  either  party.  Assuming,  what  is  not  proved,  that  the 
crime  of  abortion  was  committed,  and  that  those  who  participated  in 
procuring  it  were  the  six  members  of  the  two  families,  and  that  the 
parties  on  the  one  side  to  the  composition  of  the  crime  were  the  heads 
of  the  two  families,  Beabout  and  McCuIlough,  where  is  tlie  other  party? 
Blachley  was  not  the  prosecutor,  and  did  not  pretend  to  be.  According 
to  his  own  statement,  he  was  their  physician,  friend,  and  adviser.  He 
urged  them  to  stifle  the  prosecution  by  paying  money  to  the  Humane 
Society,  the  pretended  prosecutor,  the  other  party  to  the  composition. 
He  was  the  mere  agent  of  the  Beabouts  and  the  McCulloughs.  As- 
sume, then,  as  plaintiffs  allege  and  defendant  admits,  he  was  their  agent 
to  carry  the  money  to  the  society ;  and  assume,  further,  that  he  was 
lying  all  the  time  to  them ;  that,  in  fact,  there  was  no  such  prosecutor ; 
then  the  offense  was  impossible  of  commission,  for  want  of  parties. 
This  leaves  Blachley  in  the  position  of  a  mere  blackmailer,  who  has 
extorted  money  from  his  patients,  from  those  who  confided  in  him, 
and  whose  friend  he  pretended  to  be,  by  falsehoods  which  operated  on 
their  fears,  and  leaves  them  in  the  position  of  having  given  money  to 
their  agent  and  supposed  friend  to  be  used  by  him  in  compounding  a 
crime,  that  they  and  their  families  might  be  saved  from  scandal. 

What  is  the  policy  of  the  law  as  to  the  relation  thus  assumed  by 
Blachley,  the  agent,  towards  these  plaintiff's,  his  principals?  It  is  to 
exact  from  such  agent  the  most  unflinching  fidelity  to  his  principals. 
It  abhors  any  unfair  dealing,  treachery,  or  overreaching.     The  same 


Sec.  4)  COMPULSION   COUPLED   "WITH   ILLEGALITY  571 

rule  governs  as  between  master  and  servant,  client  and  counsel,  physi- 
cian and  patient.  The  relation  is  one  of  trust  and  confidence.  They 
do  not  deal  at  arm's  length.  The  principal  is  in  the  power  of  the  agent. 
He  is  helpless  against  wrong.  May  tliis  confidant,  by  falsehood,  entrap 
his  principal  into  an  illegal  intent,  get  possession  of  his  property  or 
money,  and  then  claim  exemption  from  restitution  by  pleading  that  his 
principals  intended  an  illegal  act?  We  can  conceive  of  nothing  more 
destructive  of  morals  in  these  relations  than  to  hold  such  a  rule  ap- 
plicable to  the  facts  of  the  case  before  us.  Such  an  application  would 
be  a  license  to  agents  and  those  occupying  confidential  relations  to 
plunder  their  principals. 

We  have  no  authority  in  this  state  directly  to  the  point  one  way  or 
the  other.  Quite  a  number  in  other  states  and  in  England  sustain  the 
view  we  have  taken.  In  Evans  v.  Trenton,  24  N.  J.  Law,  764,  Evans 
had  been  treasurer  of  the  city.  He  sought  to  retain  $500  of  the  city's 
money  in  addition  to  his  salary,  out  of  a  fund  realized  from  the  issue 
of  currency  to  raise  funds  for  the  city.  The  extra  services  were  per- 
formed in  this  transaction,  which  was  in  violation  of  thebanking  laws 
of  the  state.  When  suit  was  brought  against  him,  he  set  up  the  illegal- 
ity of  the  transaction  as  a  defense.  The  court  held :  "The  mere  agent 
to  an  illegal  transaction  cannot  set  up  the  illegality  of  the  transaction 
in  a  suit  by  his  principal  to  recover  money  that  has  been  paid  to  such 
agent  for  his  principal  on  account  of  the  illegal  transaction.  This 
defense  can  only  be  set  up  by  a  party  to  the  illegal  transac- 
tion." «»     *     *     * 

In  Wood,  Mast.  &  S.  §  202,  this  is  the  text :  "While  the  courts  will 
not  enforce  an  illegal  contract,  yet  if  a  servant  or  agent  of  another  has, 
in  the  prosecution  of  an  illegal  enterprise  for  his  master,  received 
money  or  other  property  belonging  to  the  master,  he  is  bound  to  turn 
it  over  to  him,  and  cannot  shield  himself  from  liability  therefor,  upon 
the  ground  of  the  illegality  of  the  original  transaction." 

There  are  numerous  authorities  to  the  same  effect.  If,  then,  the 
agent  cannot  successfully  set  up  the  unlawful  contract  to  enable  him  to 
hold  money  received  from  another,  for  his  principal,  much  less  can  he 
set  up  a  pretended  illegal  transaction  to  retain  money  extorted  from  his 
principals  by  the  grossest  falsehood  to  further  the  mythical  illegal 
transaction.  The  money  still  belongs  to  the  principal,  and  he  can  right- 
fully demand  it  as  soon  as  he  discovers  the  fraudulent  conduct  of  his 
agent. 

It  is  argued  that,  even  if  no  crime  was  actually  committed  by  plain- 
tiffs, yet  there  was  an  intent  to  commit  one  when  they  paid  the  money 
to  Blachley,  and  hence,  even  if  their  agent  defrauded  them,  they  cannot 
recover  it  back.  As  we  have  noticed,  the  intended  crime  was  an  im- 
possible one.  When  conduct  susceptible  of  two  constructions  is  prov- 
ed, the  intent  often  determines  its  criminality;   but  an  intent  not  car- 

8  8  The  court  here  discussed  Baldwin  v.  Potter  (1874)  46  Vt.  402.  The  case  is 
immmarized  in  a  note,  page  310,  supra. 


572  BENEFITS   CONFERRED   UNDER   COMPULSION  (Ch.  5 

ried  out  by  an  act,  or  which  is  impossible  of  execution  by  an  act,  is  not 
punishable.  The  law  takes  no  cognizance  of  an  intent  existing  only  in 
the  mind,  nor  does  it  impose,  as  a  penalty  for  such  intent,  immunity  to 
him  who  has  plundered  one  guilty  of  it.  "The  illegal  intention  must 
be  accompanied  by  an  act  which  is  criminal  or  prohibited  by  law,  in 
order  to  make  the  transaction  illegal."    1  Bish.  Cr.  Law,  sec.  204  et  seq. 

As  to  the  plea  of  the  statute  of  limitations,  it  will  not  screen  defend- 
ant from  liability  if  the  suits  were  brought  within  six  years  of  the 
discovery  of  the  fraud.  There  was  ample  evidence,  if  believed  by  the 
jury,  that  defendant  had,  by  systematic  falsehood  and  artifice,  not  only 
concealed  the  fraud,  but  for  a  long  time  had  deterred  his  employers 
from  inquiry.    Under  such  circumstances,  the  plea  will  not  avail  him. 

The  judgment  is  reversed,  and  a  procedendo  awarded. 


Ch.  G)  WAIVER   OF  TORT  '  573 

CHAPTER  VI 
WAIVER  OF  TORT  » 


ARRIS  V.  STUKELY. 
(Court  of  Exchequer,  1677.     2  Mod.  2G00 
This  case  is  printed  at  page  14,  supra. 


LAMINE  V.  DORRELL. 

(Court  of  King's  Bench,  1705.     2  Ld.  Kaym.  1216.) 
This  case  is  printed  at  page  15,  supra. 


HAMBLY  V.  TROTT. 

(Court  of  King's  Bench,  1776.     1  Cowp.  371.) 

Trover  against  an  administrator  cum  testamento  annexe  for  the  con- 
version by  the  testator  in  his  lifetime  of  certain  sheep,  goats,  pigs,  oats 
and  cyder,  the  property  of  the  plaintiff.  Plea  that  the  testator  was  not 
guilty.    Verdict  for  plaintiff. 

Mr.  Kerby  moved  in  arrest  of  judgment  upon  the  ground  of  this  be- 
ing a  personal  tort  which  dies  with  the  person,  and  had  a  rule  to  show 
cause. 

Mr.  Buller,  last  term,  shewed  cause. 

Lord  Mansfield,  C.  J.^  The  fundamental  point  to  be  consid- 
ered in  this  case  is,  whether  if  a  man  gets  the  property  of  another  into 
his  hands  it  may  be  recovered  against  his  executors  in  the  form  of  an 
action  of  trover,  where  there  is  an  action  against  the  executors  in  an- 
other form.  It  is  merely  a  distinction  whether  the  relief  shall  be  in  this 
form  or  that.  Suppose  the  testator  had  sold  the  sheep,  &c.,  in  question  : 
In  that  case,  an  action  for  money  had  and  received  would  lie.    Suppose 

1  "If  a  man's  goods  are  taken  by  an  act  of  trespass,  and  are  subsequently 
sold  by  the  trespasser,  and  turned  into  money,  he  may  maintain  trespass  for 
the  forcible  injury ;  or,  waiving  the  force,  he  may  maintain  trover  for  the 
wrong;  or,  waiving  the  tort  altogether,  he  may  sue  for  money  had  and  re- 
ceived."    Pollock,  0.  B.,  in  Rogers  v.  Maw  (1846)  15  M.  &  W.  444,  44S. 

2  A  short  statement  of  the  case  has  been  substituted  and  the  arguments  of 
counsel  and  the  brief  opinions  of  Ashurst  and  Aston,  JJ.,  together  with  one 
by  Lord  Mansfield  delivered  at  the  time  of  the  second  argument,  have  been 
omitted. 


574  WAIVER   OF   TORT  (Ch.  & 

the  testator  had  left  them  in  specie  to  the  executors,  the  conversion 
must  have  been  laid  against  the  executors.  There  is  no  difficulty  as  to 
the  administration  of  the  assets,  because  they  are  not  the  testator's  own 
property.  Suppose  the  testator  had  consumed  them,  and  had  eaten  the 
sheep;  what  action  would  have  lain  then?  Is  the  executor  to  get  off 
altogether?  I  shall  be  very  sorry  to  decide  that  trover  will  not  lie,  if 
there  is  no  other  remedy  for  the  right. 

Upon  a  second  argument. 

Cur.  advisare  vult. 

Afterwards,  on  Monday,  February  12th,  in  this  term.  Lord  Mans- 
field delivered  the  unanimous  opinion  of  the  court  as  follows : 

This  was  an  action  of  trover  against  an  administrator,  with  the  will 
annexed.  The  trover  and  conversion  were  both  charged  to  have  been 
committed  by  the  testator  in  his  life-time :  The  plea  pleaded  was,  that 
the  testator  was  not  guilty.  A  verdict  was  found  for  the  plaintiffs,  and 
a  motion  has  been  made  in  arrest  of  judgment,  because  this  is  a  tort, 
for  which  an  executor  or  administrator  is  not  liable  to  answer. 

The  maxim,  "actio  personalis  moritur  cum  persona,"  upon  which  the 
objection  is  founded,  not  being  generally  true,  and  much  less  universally 
so,  leaves  the  law  undefined  as  to  the  kind  of  personal  actions  which  die 
with  the  person,  or  survive  against  the  executor. 

An  action  of  trover  being  in  form  a  fiction,  and  in  substance  founded 
on  property,  for  the  equitable  purpose  of  recovering  the  value  of  the 
plaintiff's  specific  property,  used  and  enjoyed  by  the  defendant;  if  no, 
other  action  could  be  brought  against  the  executor,  it  seems  unjust  and 
inconvenient,  that  the  testator's  assets  should  not  be  liable  for  the  value 
of  what  belonged  to  another  man,  which  the  testator  had  reaped  the 
benefit  of. 

We  therefore  thought  the  matter  well  deserved  consideration :  We 
have  carefully  looked  into  all  the  cases  upon  the  subject.  To  state  and 
go  through  them  all  would  be  tedious,  and  tend  rather  to  confound  than 
elucidate.  Upon  tlie  whole,  I  think  these  conclusions  may  be  drawn 
from  them. 

First,  as  to  actions  which  survive  against  an  executor,  or  die  with  the 
person,  on  account  of  the  cause  of  action.  Secondly,  as  to  actions  which 
survive  against  an  executor,  or  die  with  the  person,  on  account  of  the 
form  of  action. 

As  to  the  first ;  where  the  cause  of  action  is  money  due,  or  a  contract 
to  be  performed,  gain  or  acquisition  of  the  testator,  by  the  work  and 
labor,  or  property  of  another,  or  a  promise  of  the  testator  express  or  im- 
plied ;  where  these  are  the  causes  of  action  the  action  survives  against 
the  executor.  But  where  the  cause  of  action  is  a  tort,  or  arises  ex  de- 
licto as  is  said  in  Hole  v.  Blandford,  T.  Raym.  57,  supposed  to  be  by 
force  and  against  the  king's  peace,  there  the  action  dies  ;  as  battery,  false 
imprisonment,  trespass,  words,  nuisance,  obstructing  lights,  diverting  a 
water  course,  escape  against  the  sheriff  and  many  other  cases  of  the 
like  kind. 


Ch.  6)  WAIVER   OF   TORT  575 

Secondly,  as  to  those  which  survive  or  die,  in  respect  of  the  form  of 
action.  In  some  actions  the  defendant  could  have  waged  his  law;  and 
therefore,  no  action  in  that  form  lies  against  an  executor.  But  now, 
other  actions  are  substituted  in  their  room  upon  the  very  same  cause, 
which  do  survive  and  lie  against  the  executor.  No  action  where  in 
form  the  declaration  must  be  quare  vi  et  armis,  et  contra  pacem,  or 
where  the  plea  must  be,  as  in  this  case,  that  the  testator  was  not  guilty, 
can  lie  against  the  executor.  Upon  the  face  of  the  record,  the  cause  of 
action  arises  ex  delicto;  and  all  private  criminal  injuries  or  wrongs,  as 
well  as  all  public  crimes,  are  buried  with  the  o^ender. 

But  in  most,  if  not  in  all  the  cases,  where  trover  lies  against  the  tes- 
tator, another  action  might  be  brought  against  the  executor,  which 
would  answer  the  purpose.  An  action  on  the  custom  of  the  realm 
against  a  common  carrier,  is  for  a  tort  and  supposed  crime :  The  plea 
is  not  guilty ;  therefore,  it  will  not  lie  against  an  executor.  But  as- 
sumpsit, which  is  another  action  for  the  same  cause,  will  lie.  So  if  a 
man  take  a  horse  from  another,  and  bring  him  back  again ;  an  action  of 
trespass  will  not  lie  against  his  executor,  though  it  would  against  him ; 
but  an  action  for  the  use  and  hire  of  the  horse  will  lie  against  the  ex- 
ecutor. 

There  is  a  case  in  T.  Raym.  71,  which  sets  this  matter  in  a  clear  light: 
There,  in  an  action  upon  the  case,  the  plaintiff  declared,  "that  he  was 
possessed  of  a  cow,  which  he  delivered  to  the  testator,  Richard  Bailey, 
in  his  life-time,  to  keep  the  same  for  the  use  of  him  the  plaintiff; 
which  cow  the  said  Richard  afterwards  sold,  and  did  convert  and  dis- 
pose of  the  money  to  his  own  use ;  and  that  neither  the  said  Richard,  in 
his  life,  nor  the  defendant  after  his  death,  ever  paid  the  said  money." 
Upon  this  state  of  the  case,  no  one  can  doubt  but  the  executor  was  liable 
for  the  value.  But  the  special  injury  charged  obliged  him  to  plead,  that 
the  testator  was  not  guilty.  The  jury  found  him  guilty.  It  was  moved 
in  arrest  of  judgment,  because  this  is  a  tort  for  which  the  executor  is 
not  liable  to  answer,  but  moritur  cum  persona.  For  the  plaintiff  it  was 
insisted,  that  though  an  executor  is  not  chargeable  for  a  mis-feasance, 
yet  for  a  nonfeasance  he  is :  as  for  non-payment  of  money  levied  upon 
a  fieri  facias,  and  cited  Cro.  Car.  539,  9  Coke,  50b,  where  this  very  dif- 
ference was  agreed;  for  non-feasance  shall  never  be  vi  et  armis,  nor 
contra  pacem :  But  notwithstanding  this,  the  court  held  "it  was  a  tort, 
and  that  the  executor  ought  not  to  be  chargeable."  Sir  Thomas  Ray- 
mond adds :  "Vide  Saville,  40,  a  difference  taken."  That  was  the  case 
of  Sir  Henry  Sherrington,  who  had  cut  down  trees  upon  the  queen's 
land,  and  converted  them  to  his  own  use  in  his  life-time.  Upon  an  in- 
formation against  his  widow,  after  his  decease,  Manwood,  J.,  said :  "In 
every  case  where  any  price  or  value  is  set  upon  the  thing  in  which  the 
offence  is  committed,  if  the  defendant  dies,  his  executor  shall  be  charge- 
able; but  where  the  action  is  for  damages  only,  in  satisfaction  of  the 
injury  done,  there  his  executor  shall  not  be  liable."  These  are  the 
words  Sir  Thomas  Raymond  refers  to. 


576  WAIVER  OF  TORT  (Ch.  6 

Here  therefore  is  a  fundamental  distinction.  If  it  is  a  sort  of  injury 
by  which  the  offender  acquires  no  gain  to  himself  at  the  expense  of  tlie 
sufferer,  as  beating  or  imprisoning  a  man,  &c.  there,  the  person  injured 
has  only  a  reparation  for  the  delictum  in  damages  to  be  assessed  by  a 
jury.  But  where,  besides  the  crime,  property  is  acquired  which  benefits 
the  testator,  there  an  action  for  the  value  of  the  property  shall  survive 
against  the  executor.  As  for  instance,  the  executor  shall  not  be  charge- 
able for  the  injury  done  by  his  testator  in  cutting  down  another  man's 
trees,  but  for  the  benefit  arising  to  his  testator  for  the  value  or  sale  of 
the  trees  he  shall. 

So  far  as  the  tort  itself  goes,  an  executor  shall  not  be  liable ;  and 
therefore  it  is,  that  all  public  and  all  private  crimes  die  with  the  offen- 
der, and  the  executor  is  not  chargeable ;  but  so  far  as  the  act  of  the  of- 
fender is  beneficial,  his  assets  ought  to  be  answerable ;  and  his  executor 
therefore  shall  be  charged. 

There  are  express  authorities,  that  trover  and  conversion  does  not 
lie  against  the  executor :  I  mean,  where  the  conversion  is  by  the  testa- 
tor.   W.  Jones,  173,  174;  Palmer,  330.    There  is  no  saying  Uiat  it  does. 

The  form  of  the  plea  is  decisive,  viz.  that  the  testator  was  not  guilty ; 
and  the  issue  is  to  try  the  guilt  of  the  testator.  And  no  mischief  is 
done ;  for  so  far  as  tlie  cause  of  action  does  not  arise  ex  delicto,  or  ex 
maleficio  of  the  testator,  but  is  founded  in  a  duty,  which  the  testator 
owes  the  plaintiff;  upon  principles  of  civil  obligation,  another  form  of 
action  may  be  brought,  as  an  action  for  money  had  and  received. 
Therefore,  we  are  all  of  opinion  that  the  judgment  must  be  arrested. 

Per  Curiam.    Judgment  arrested.* 

3  Survival  of  Quasi  Contractual  Claims.— The  principle  of  survivorship, 
which  applies  generally  to  quasi  contractual  obligations  wherever  there  is  an 
enrichment  of  the  decedent's  estate,  constitutes  an  important  distinction  be- 
tween Quasi  Contract  and  Tort  This  principle  is  exemplitied  by  the  following 
cases : 

Powell  V.  Reese  (1837)  7  Ad.  &  El.  426.  (Assumpsit  lies  against  administra- 
tor for  the  money  received  by  the  intestate  upon  the  sale  of  coal  tortiously 
mined  on  plaintiff's  land.) 

I'erkinson  v.  Guilford  (1640)  Croke  Car.  539.  (Debt  lies  against  the  executor 
of  a  sheriff  for  the  amount  collected  on  a  levy  by  such  sheriff.) 

Sellers  v.  Lawrence  (1743)  Willis,  413.  (Debt  lies  on  a  judgment  against  an 
executor  which  judgment  was  based  on  a  statutory  obligation  resting  on  the 
testator  to  pay  a  certain  sum  toward  the  rebuilding  of  a  parsonage,  wliich  was 
"demolished  by  the  late  dreadful  fire.") 

Patton  v.  Srady  (1902)  184  U.  S.  G08,  614,  22  Sup.  Ct.  493,  46  L.  Ed.  713. 
(The  cause  of  action  against  a  collector  of  taxes,  to  recover  taxes  wrongfully 
assessed  and  paid  under  protest  to  avoid  a  threatened  seizure  and  sale  of 
plaintiff's  goods,  survives  against  the  legal,  representative  of  the  collector.  "If 
a  party  increased  his  own  estate  by  wrongfully  taking  another's  property  an 
action  against  him  would  survive  his  death,  and  might  be  revived  against  his 
personal  representative.") 

For  an  early  instance  of  survivorship  of  a  quasi  contractual  claim  based 
on  mijust  enrichment,  see  Core's  Case  (1573)  Dyer,  20a  (briefly  stated  in  note, 
page  12,  supra). 

See  also  Head  v.  Porter  (C.  C.  1S95)  70  Fed.  498;  Ferrill  v.  Mooney  (1870) 
33  Tex.  219. 


Ch.  6)  WAIVER  OF  TOKT  577 

PHILLIPS  V.  HOMFRAY. 

(Court  of  Appeal,  1SS3.     24  Ch.  Div.  439.) 

Messrs.  Honifray,  Fothergill  and  Forman,  who  owned  a  coal  mine 
adjoining  the  plaintiffs'  farm,  not  only  abstracted  minerals  from  under- 
neath tlie  farm  of  plaintiffs,  but  also  used  certain  underground  roads 
and  passages  constructed  by  them  under  plaintiff's  land  to  remove  to 
the  surface  minerals  mined  on  their  own  land.  Plaintiffs  instituted  a 
suit  in  equity  seeking  an  accounting  of  the  value  of  the  minerals  ab- 
stracted from  their  land,  and  also  praying  that  the  defendants  might  be 
decreed  to  pay  a  wayleave  rent  or  compensation  in  respect  of  their  user 
of  such  roads  and  passages  under  plaintiff's  land.  Pending  the  trial  of 
the  case,  Forman  and  Fothergill,  two  of  the  defendants,  died,  and  the 
suit  was  revived  against  their  several  executors.  One  of  such  execu- 
tors moved  to  stay  all  proceedings  upon  an  enquiry  which  had  been  di- 
rected by  the  court,  in  so  far  as  such  enquiry  was  concerned  with  the 
amount  of  minerals  of  the  defendants  that  had  been  conveyed  to  the 
surface  through  the  roads  or  passages  under  plaintiff's  farm,  and  the 
reasonable  value  which  should  be  paid  to  plaintiffs  as  wayleave  or  roy- 
alty for  the  use  of  such  underground  passages.  Pearson,  J.,  having 
declined  to  stay  these  enquiries,  the  present  appeal  was  taken. 

Bowe;n,  L.  J./  delivered  the  opinion  of  Lord  Justice  Cotton  and 
himself. 

*  *  *  The  plaintiffs'  claim  out  of  which  the  2nd  and  3rd  inquiries 
spring  is  a  claim  to  be  compensated  for  the  secret  and  tortious  use  made 
by  the  deceased  R.  Fothergill  and  others  during  his  lifetime  of  the  un- 
derground ways  and  passages  under  the  Plaintiffs'  farm  for  the  pur- 
pose of  conveying  the  coal  and  ironstone  of  R.  Fothergill  and  his  co- 
trespassers.  The  judgment  of  Mr.  Justice  Pearson  as  to  these  two 
inquiries  is  based  upon  the  view  that  this  description  of  claim  did  not 
abate  upon  R.  Fothergill's  death,  but  was  capable  of  being  prosecuted 
against  the  assets  in  the  hands  of  his  executrix.     *     *     * 

The  only  cases  in  which,  apart  from  questions  of  breach  of  contract, 
express  or  implied,  a  remedy  for  a  wrongful  act  can  be  pursued  against 
the  estate  of  a  deceased  person  who  has  done  the  act,  appear  to  us  to  be 
those  in  which  property,  or  the  proceeds  or  value  of  property,  belonging 
to  another,  have  been  appropriated  by  the  deceased  person  and  added  to 
his  own  estate  or  moneys.  In  such  cases,  whatever  the  original  form 
of  action,  it  is  in  substance  brought  to  recover  property,  or  its  proceeds 
or  value,  and  by  amendment  could  be  made  such  in  form  as  well  as  in 
substance.    In  such  cases  tlie  action,  though  arising  out  of  a  wrongful 

*  The  case  has  been  much  condensed,  mainly  by  omitting  the  opinion  of 
Pearson,  J.,  the  arRiiments  of  counsel  and  the  elaborate  discussions  of  Hambly 
V.  Trott  (i^rinted  at  page  573,  supra)  contained  in  the  ophiions  of  Bowen  and 
Baggalley,  L.  JJ.  The  student  will  be  well  repaid  by  reading  the  entire 
report  of  this  important  ease. 

TUURS.QUASI  CONT. — 37 


57S  WAIVER  OF  TORT  *  (Ch.  6 

act,  does  not  die  with  the  person.  The  property  or  the  proceeds  or 
value  which,  in  the  hfetime  of  the  wrongdoer,  could  have  been  re- 
covered from  him  can  be  traced  after  his  death  to  his  assets,  and  re- 
captured by  the  rightful  owner  there.  But  it  is  not  every  wrongful  act 
by  which  a  wrongdoer  indirectly  benefits  that  falls  under  this  head,  if 
the  benefit  does  not  consist  in  the  acquisition  of  property,  or  its  pro- 
ceeds or  value.  Where  there  is  nothing  among  the  assets  of  the  de- 
ceased that  in  law  or  equity  belongs  to  the  plaintiff,  and  the  damages 
which  have  been  done  to  him  are  unliquidated  and  uncertain,  the  ex- 
ecutors of  a  wrongdoer  cannot  be  sued  merely  because  it  was  worth  the 
wrongdoer's  while  to  commit  the  act  which  is  complained  of,  and  an  in- 
direct benefit  may  have  been  reaped  thereby.  *  *  *  This  line  of 
demarcation  has  drawn  itself  in  conformity  with  the  classifications  of 
forms  of  action  known  to  the  English  law.  As  long  as  the  maxim  actio 
personalis  moritur  cum  persona  is  preserved  by  the  law  of  this  country, 
the  line  drawn  is  neither  inconvenient  nor  unreasonable.  If  every 
wrongful  act  which  was  attended  consequentially  and  indirectly  with 
advantage  to  the  wrongdoer  or  his  pocket  were  to  warrant  an  action 
against  executors,  it  would  be  impossible  to  know  when  executors  were 
liable  or  not,  and  the  maxim  would,  in  fact,  become  a  mere  source  of 
litigation.  We  have  not  now  to  consider  the  policy  of  the  maxim.  It 
is  part  of  the  law,  and  while  it  is  so,  ought  not  to  be  frittered  away. 

The  judgment,  however,  of  Mr.  Justice  Pearson  is  based  upon  certain 
dicta  of  Lord  Mansfield  in  Hambly  v.  Trott,  1  Cowp.  374,  which  are  in 
form  ambiguous,  and  it  is  necessary  accordingly  to  examine  these  dicta 
with  reference  to  the  histci'y  of  the  maxim  actio  personalis  moritur 
cum  persona. °  *  *  *  jj.  seems  to  us  that  Lord  Mansfield  does  no 
more  than  indicate  that  there  is  a  class  of  cases  in  which  assumpsit  can 
be  brought  against  a  wrongdoer  to  recover  the  property  he  has  taken  or 
its  proceeds  or  value,  and  that  in  such  cases  the  action  will  survive 
against  the  executor.  *  *  *  If  so,  the  true  test  to  be  applied  in  the 
present  case  is  whether  the  plaintiffs'  claim  against  the  deceased  R. 
Fothergill,  in  respect  of  which  inquiries  2  and  3  were  directed  in  his 
lifetime,  belongs  to  the  category  of  actions  ex  delicto,  or  whether  any 
form  of  action  against  the  executors  of  the  deceased,  or  the  deceased 
man  in  his  lifetime,  can  be  based  upon  any  implied  contract  or  duty.  In 
other  words,  could  the  plaintiffs  have  sued  the  deceased  at  law  in  any 
form  of  action  in  which  "Not  guilty"  would  not  be  the  proper  plea? 
If  such  alternative  form  of  action  could  be  conceived  it  must  be  either 
"an  action  for  the  use,  by  the  plaintiffs'  permission,  of  the  plaintiffs' 
roads,  and  passages,  similar  in  principle,  though  not  identical,  with  an 
action  for  the  use  and  occupation  of  the  plaintiffs'  land.  Or  it  must  be 
in  the  shape  of  an  action  for  money  had  and  received,  based  upon  the 
supposition  that  funds  are  in  the  hands  of  the  executors  which  properly 
belong  in  law  or  in  equity  to  the  plaintiffs.  We  do  not  believe  that  the 
principle  of  waiving  a  tort  and  suing  in  contract  can  be  carried  further 

6  The  discussion  of  Hambly  v.  Trott  and  the  cases  therein  cited  is  omitted. 


Ch.  6)  WAIVER   OF  TORT  579 

than  this — that  a  plaintiff  is  entitled,  if  he  chooses  it,  to  abstain  from 
treating  as  a  wrong  the  acts  of  the  defendant  in  cases  where,  inde- 
pendently of  the  question  of  wrong,  the  plaintiff  could  make  a  case  for 
relief.  There  have  been,  no  doubt,  instances  in  which,  nothing  further 
appearing  in  evidence  but  that  one  person  is  the  owner  of  land  and  that 
another  had  taken  possession  of  and  enjoyed  it,  an  action  for  use  and 
occupation  under  the  statute  has  been  upheld.  See  Hellier  v.  Sillcox, 
19  L.  J.  (Q.  B.)  295.  In  such  cases  the  inference,  in  the  absence  of 
proof  to  the  contrary,  has  been  allowed  to  be  drawn,  that  the  enjoyment 
was  by  permission  of  the  rightful  owner.  On  a  somewhat  similar  prin- 
ciple an  action  by  the  lord  of  a  market  for  stallage  was  held  maintain- 
able against  a  person  who  fixed  a  stall  in  the  soil  without  leave  or  li- 
cense. The  authority  of  this  latter  case  has  been  questioned,  see  Turner 
V.  Cameron's  Coalbrook  Steam  Coal  Company,-  5  Ex.  932 ;  and  actions 
for  use  and  occupation,  according  to  the  better  opinion,  have  been  con- 
fined to  the  class  of  cases  where  defendant  is  not  a  trespasser  setting 
up  an  adverse  title,  and  where  there  are  no  circumstances  that  negative 
the  implication  of  a  contract:  see  Churchward  v.  Ford,  2  H.  &  N.  446, 
per  Pollock,  C.  B. ;  Birch  v.  Wright,  1  T.  R.  378.  No  doubt  the  mere 
enjoyment  by  one  man  of  another  man's  property,  real  or  personal,  may 
be  had  under  such  circumstances  as  leave  still  open,  as  a  reasonable  in- 
ference, the  presumption  that  it  is  taken  on  the  terms  of  payment,  just 
as  a  man  who  takes  a  bun  from  the  refreshment  counter  at  a  railway 
station,  takes  it  on  the  implied  promise  to  pay  for  it.  So  actions  of 
assumpsit  have  been  held  to  lie  for  the  rents  of  land  improperly  re- 
ceived under  pretence  of  title.  See  Bacon's  Abridgment,  Assumpsit  7th 
Ed.  vol.  1,  p.  336;  Clarence  v.  Marshall,  per  Bayley,  B.,  2  C.  &  M.  495. 

One  of  the  most  remarkable  instances  of  waiver  of  a  tort  is  to  be 
found  in  the  case  of  Lightly  v.  Clouston,  1  Taunt.  112,  where  the  master 
of  an  apprentice  who  had  been  seduced  from  his  service  to  work  for 
another  person  was  held  justified  in  waiving  the  tort  and  bringing  an 
action  of  indebitatus  assumpsit  for  work  and  labour  done  against  the 
tortfeasor.  Lord  Mansfield,  in  deciding  the  case,  referred  to  the  cases 
of  wrongful  sale  of  goods,  where,  if  the  rightful  owner  chooses  to  sue 
for  the  produce  of  the  sale,  he  may  do  it,  the  practice  being  an  advan- 
tage and  not  a  disadvantage  to  the  defendant.  The  case  was  decided 
upon  the  ground  that  the  labour  of  the  apprentice  belonged  to  his 
master,  who  might  insist  on  an  equivalent  for  it,  or  at  all  events,  that 
the  apprentice  could  not  contract  for  the  benefit  of  anybody  except  his 
rightful  owner  (see  per  Lord  Ellenborough  in  Foster  v.  Stewart,  3  M. 
&  S.  191).  And  actions  in  which  the  owners  of  goods  wrongfully  sold 
were  held  entitled  to  waive  the  tort,  and  to  recover  in  assumpsit  for  the 
proceeds,  had  become  familiar  to  the  common  law  as  far  back  as  to- 
wards the  end  of  the  17th  century.  See  Lamine  v.  Dorrell,  2  Ld.  Raym. 
1216. 

The  difficulties  of  extending  the  above  principle  to  the  present  case 
appears  to  us  insuperable.    The  deceased,  R.  Fothergill,  by  carrying  his 


580  WAIVER  OF  TORT  (Ch.  6 

coal  and  ironstone  in  secret  over  the  plaintiffs'  roads  took  nothing  from 
the  plaintiffs.  The  circumstances  under  which  he  used  the  road  appear 
to  us  to  negative  the  idea  that  he  meant  to  pay  for  it.  Nor  have  the 
assets  of  the  deceased  defendant  been  necessarily  swollen  by  what  lie 
has  done.  He  saved  his  estate  expense,  but  he  did  not  bring  into  it  any 
additional  property  or  value  belonging  to  another  person.  The  case  of 
Kirk  V.  Todd,  21  Ch.  D.  484,  488,  seems  to  us  materially  in  point. 
There  the  owners  of  certain  dye-works  sued  the  original  defendants  for 
fouling  and  polluting  a  brook.  It  was  held  that  the  action  would  not 
survive  against  their  executors.  The  late  Master  of  the  Rolls  used 
the  following  language :  "This  was  an  action  on  a  simple  tort.  It  did 
not  appear  that  the  defendant  had  got  any  benefit  by  fouling  the  plain- 
tiffs' stream,  he  had  only  injured  the  plaintiff.  As  I  understand  the 
rule  at  common  law  it  was  this — you  could  not  sue  executors  for  a 
wrong  committed  by  their  testator  for  which  you  could  recover  only 
unliquidated  damages.  That  rule  has  never  been  altered  except  by  the 
Act  3  &  4  Will.  IV,  c.  42,  which  allowed  the  executors  to  be  sued  in 
certain  cases,  but  with  the  limitation  that  the  injury  must  have  been 
committed  not  more  than  six  months  before  the  death  of  the  testator. 
That  was  not  so  here ;  therefore  the  statute  did  not  apply,  and  the  rule 
of  the  common  law  remained  in  its  simplicity."  In  every  case  where 
one  man  fouls  the  flow  of  water  to  which  another  is  entitled  he  probably 
saves  himself  expense  by  doing  so.  But  the  benefit  to  which  the  Mas- 
ter of  the  Rolls  alludes  appears  to  us  to  be  some  beneficial  property  or 
value  capable  of  being  measured,  followed,  and  recovered. 

It  remains  to  be  considered  whether  there  is  any  equitable  doctrine 
which  can  extend  or  vary  the  above  rules  of  the  common  law.  We  can 
see  none.  An  action  for  account  will  only,  under  such  circumstances, 
lie  where  the  defendant  has  something  in  his  hands  representing  the 
plaintiffs'  property  or  the  proceeds  or  value  of  it.  But  if  there  were 
any  such  it  could  be  recovered  at  law  as  well  as  in  equity.     *     *     * 

The  appeal  of  the  defendant  Mary  Fothergill  as  to  inquiries  Nos.  2 
and  3  will,  therefore,  be  allowed,  with  costs. 

Baggallay,  L.  J.  I  regret  that,  as  regards  the  appeal  of  Mrs. 
Fothergill,  I  have  arrived  at  a  conclusion  different  from  that  which  has 
been  arrived  at  by  the  other  members  of  the  Court.'     *     *     * 

It  would  appear  then  that  the  Judges  who  disposed  of  Hambly  v. 
Trott,  1  Cowp.  371,  were  of  opinion,  first,  that  the  cause  of  action  was 
such  that  the  executors  might  have  been  made  liable  ;  secondly,  that  by 
reason  of  the  form  of  the  action,  the  declaration  being  in  trover,  and 
the  plea  that  the  testator  was  not  guilty,  it  could  not  be  maintained 
against  the  executors ;  and  tliirdly,  and  notwithstanding  the  arrest  of 
judgment  in  the  pending  action,  another  form  of  action  might  be 
brought  and  maintained  against  the  executors.  It  is  to  my  mind  clear 
that  the  Judges  were  of  opinion  that  the  merits  were  with  the  plaintiff, 

«  The  discussion  of  Hambly  y.  Trott  Is  omitted. 


Ch.  6)  WAIVER  OF  TORT  581 

but  that  they  were  precluded  by  the  technicalities  of  the  pleadings  from 
giving  him  that  to  which  they  deemed  him  morally  entitled.     *     *     * 

Upwards  of  100  years  have  elapsed  since  this  judgment  in  Hambly 
V.  Trott,  1  Cowp.  371,  was  delivered.  It  has  ever  since  been  regarded 
as  an  accurate  representation  of  the  state  of  the  law  as  affecting  execu- 
tors in  respect  of  causes  of  action  and  forms  of  action  arising  out  of  the 
acts  of  their  testators.  *  *  *  It  has  hardly  been  disputed  on  the 
present  appeal  that  a  remedy  for  a  wrongful  act  can  be  pursued  against 
the  estate  of  a  deceased  person  by  whom  the  act  has  been  committed, 
when  property,  or  the  proceeds  of  property,  belonging  to  another  have 
been  appropriated  by  the  deceased  person,  in  other  words  that  tlie  action 
in  such  cases,  though  arising  out  of  a  wrongful  act,  does  not  die  with 
the  person ;  but  it  has  been  urged  that  the  principle  thus  enunciated  is 
limited  to  cases  in  which  property,  or  the  proceeds  of  property,  have 
been  appropriated  by  the  deceased  person,  and  that  it  does  not  apply  to 
a  case  in  which  the  deceased  person  has  derived  any  other  benefit  from 
his  wrongdoing,  than  property  or  the  proceeds  of  property,  and  in  par- 
ticular that  it  does  not  apply  to  a  case  in  which  the  benefit  derived  has 
not  been  in  the  form  of  an  actual  acquisition  of  property,  but  of  a  sav- 
ing of  expenditure  which  must  otherwise  have  been  incurred  by  the 
wrongdoer,  as  in  the  present  case,  in  which,  for  the  purpose  of  the  pres- 
ent argument,  it  must  be  assumed  tliat  by  the  use  by  the  defendants, 
for  the  carriage  of  their  minerals,  of  the  roads  and  passages  under  the 
plaintiffs'  farm,  there  was  a  saving  to  them  of  an  expenditure  which 
they  must  otherwise  have  incurred. 

Speaking  with  much  diffidence,  as  my  views  in  this  respect  differ 
from  those  of  my  colleagues,  I  feel  bound  to  say  that  I  cannot  appreci- 
ate the  reasons  upon  which  it  is  insisted  that  although  executors  are 
bound  to  account  for  any  accretions  to  the  property  of  their  testator 
derived  directly  from  his  wrongful  act,  they  are  not  liable  for  the 
amount  or  value  of  any  other  benefit  which  may  be  derived  by  his  es- 
tate from  or  by  reason  of  such  wrongful  act.  I  can  find  nothing  in  the 
language  used  by  Lord  Mansfield  that  can  support  this  view.  On  the 
contrary,  when  classifying  the  actions  which  survive  against  an  execu- 
tor by  reason  of  the  causes  of  action,  he  includes  among  such  causes 
of  action  "gain  or  acquisition  by  the  testator  by  the  work  and  labour  or 
property  of  another,"  and  he  in  no  respect  limits  or  qualifies  the  nature 
or  character  of  the  "gain"  referred  to.  A  gain  or  acquisition  to  the 
wrongdoer  by  the  work  and  labour  of  another  does  not  necessarily,  if  it 
does  at  all,  imply  a  diminution  of  the  property  of  such  other  person. 
Whether  the  amount  of  the  wayleave  which  a  person  could  reasonably 
be  called  upon  to  pay  for  the  use  for  the  carriage  of  his  minerals  over 
the  roads  of  another,  would  be  a  fair  measure  of  the  gain  or  acquisition 
to  the  property  of  the  person  who  has  so  used  them  without  paying  any 
wayleave,  is  a  question  which  it  is  not  necessary  to  decide. 

I  entertain  no  doubt  as  to  there  being  ample  means  of  ascertaining 
the  amount  of  gain  or  acquisition  to  the  property  of  a  person  so  using 


5S2  WAIVER   OF   TORT  (Ch.  6 

the  roads  of  another.  That  Lord  Mansfield  did  not  intend  to  limit  the 
generality  of  the  rule  enunciated  by  him  in  the  manner  suggested  is,  I 
think,  clear  from  the  following  observations  made  by  him  in  the  course 
of  the  first  argument  in  Hambly  v.  Trott,  1  Cowp.  373:  "Suppose  the 
testator  had  sold  the  sheep,  &c.,  in  question.  In.  that  case  an  action  for 
money  had  and  received  would  lie.  Suppose  the  testator  had  left  them 
in  specie  to  the  executors,  the  conversion  must  have  been  laid  against 
the  executors.  Suppose  the  testator  had  consumed  them  and  had  eaten 
the  sheep,  what  action  would  have  lain  there?  Is  the  executor  to  get 
off  altogether?  I  shall  be  very  sorry  to  decide  that  trover  will  not  lie  if 
there  is  no  other  remedy  for  the  right."  It  appears  to  me  clear  that  in 
the  opinion  of  Lord  Mansfield  the  injured  owner  of  the  sheep  was 
equally  entitled  to  redress  against  the  estate  of  the  wrongdoer,  whether 
the  sheep  were  sold  by  him,  or  were  consumed  by  him,  or  were  left  by 
him  in  specie  at  his  death.  Now,  if  the  sheep  had  been  consumed  by 
the  testator,  the  only  accretion  to  his  property  derived  from  his  so 
doing  would  have  been  the  amount  of  the  saving  in  his  butcher's  bill 
and  I  am  unable  to  appreciate  the  distinction  in  principle  between  add- 
ing to  his  property  by  savings  in  the  amount  of  his  butcher's  bills  and 
by  savings  in  the  cost  of  carrying  his  minerals.     *     *     * 

For  these  reasons  the  appeal  of  Mrs.  Fothergill  ought,  in  my  opin- 
ion, to  be  dismissed.^ 


LIGHTLY  v.  CLOUSTON. 

(Court  of  Common  Pleas,  1S08.     1  Taunt.  112.) 

This  was  an  action  of  indebitatus  assumpsit  "for  work  and  labor 
performed  for  the  defendant  at  his  request,  by  one  Thomas  Sinclair, 
the  apprentice  of  the  plaintiff  legally  bound  to  him  by  indenture,  for 
a  term  of  years  at  the  time  of  the  work  and  labour  so  performed  ex- 
isting and  unexpired,  and  to  the  profits  and  receipts  of  whose  work 
and  labour  the  plaintiff'  was,  as  the  master  of  the  said  apprentice,  by 
law  entitled."  The  defendant  seduced  the  apprentice  from  on  board 
the  plaintiff's  ship  in  Jamaica,  and  employed  him  as  a  mariner  to 
assist  in  navigating  his  own  ship  from  Port  Royal  home.  The  cause 
was  tried  at  the  sittings  after  Trinity  term  last  before  Mansfield, 
Ch.  J.  The  jury  found  a  verdict  for  the  plaintiff,  subject  to  the  opin- 
ion of  the  court  on  the  following  objection,  namely,  that  the  plaintiff 
ought  to  have  declared  in  a  special  action  on  the  case,  and  that  indeb- 
itatus assumpsit  would  not  lie. 

7  The  doctrine  of  Phillips  v.  Homfray  was  followed  in  Payne's  Appeal  (1S95) 
65  Coim.  397,  32  Atl.  948,  33  L.  R.  A.  41S,  48  Am.  St.  Rep.  215.  The  view  ad- 
vanced in  the  dissenting  opinion  is  approved  by  text  writers  (Keener,  Quasi 
Contracts,  163  et  seq. ;  Woodward  Quasi  Contracts,  §  274),  and  has  the  direct 
support  of  some  authority  (Sollers  v.  Lawrence  [1743],  AVilles,  413 ;  Ferrill  v. 
Mooney  [1870]  33  Tex.  219).  as  well  as  the  indirect  support  of  many  of  the 
other  cases  in  the  present  chapter. 


Ch.  6)  WAIVER   OF  TORT  '  5S3 

Mansfield,  C.  J.  It  is  difficult  upon  principle  to  distinguish  this 
case  from  those  that  have  arisen  on  bankruptcies  and  executions,  and 
in  which  it  has  been  held  that  trover  may  be  converted  into  an  action 
for  money  had  and  received,  to  recover  the  sum  produced  by  the  sale 
of  the  goods.  I  should  much  doubt  the  case  of  Smith  v.  Hodson  [4 
Term  R.  217],  but  that  I  remember  a  case  so  long  back  as  the  time  of 
Lord  Chief  Justice  Eyre  in  the  reign  of  George  the  Second,  in  which  the 
same  thing  was  held.  I  should  have  thought  it  better  for  the  law  to  have 
kept  its  course :  but  it  has  now  been  long  settled,  that  in  cases  of  sale, 
if  the  plaintiff  chuses  to  sue  for  the  produce  of  that  sale,  he  may  do 
it:  and  the  practice  is  beneficial  to  the  defendant,  because  a  jury  may 
give  in  damages  for  the  tort  a  much  greater  sum  than  the  value  of 
the  goods.  In  the  present  case  the  defendant  wrongfully  acquires  the 
labour  of  the  apprentice;  and  the  master  may  bring  his  action  for 
the  seduction.  But  he  may  also  waive  his  right  to  recover  damages 
for  the  tort,  and  may  say  that  he  is  entitled  to  the  labour  of  his  ap- 
prentice, that  he  is  consequently  entitled  to  an  equivalent  for  that  la- 
bour, which  has  been  bestowed  in  the  service  of  the  defendant.  It  is 
not  competent  for  the  defendant  to  answer,  that  he  obtained  that  la- 
bour, not  by  contract  with  the  master,  but  by  wrong ;  and  that  there- 
fore he  will  not  pay  for  it.  This  case  approaches  as  nearly  as  possible 
to  the  case  where  goods  are  sold,  and  the  money  has  found  its  way  into 
the  pocket  of  the  Defendant. 

Heath,  J.  So  long  back  as  the  time  of  Charles  the  Second  it  was 
held  that  the  title  to  an  office,  under  an  adverse  possession,  might  be 
tried  in  an  action  for  the  fees  of  the  office  had  and  received ;  and  Holt, 
Ch.  J.,  held  it  clear  law,  that  if  a  person  goes  and  receives  my  rents 
from  my  tenants,  I  may  bring  my  action  against  him  for  money  had 
and  received.  It  is  for  the  benefit  of  the  Defendant  that  this  form  of 
action  should  be  allowed  to  prevail,  for  it  admits  of  a  set-off,  and  de- 
ductions, which  could  not  be  allowed  in  an  action  framed  on  the 
tort. 

Rule  discharged." 

8  Accord :    ISIunsey  v.  Goorlv^in  (1S25)  :i  N.  IT.  272. 

A  parent  may  recover  in  indebitatus  nssninpsit  for  the  mine  of  tlie  services 
of  his  minor  child  from  one  who  knowingly  employs  the  rhild  without  the 
-consent  of  the  parent  (I)ut  defendant  may  offset  the  value  of  n(>eessaries  fur- 
nished the  child).  CuUierson  v.  Alabama  Construction  Co.  (1007)  127  (Ja.  .109, 
56  S.  E.  7G5,  9  L.  R.  A.  (N.  S.)  411,  9  Ann.  Cas.  507.  The  mother  of  a  bastard 
child  was  allowed  the  same  risht  in  Illinois  Central  R,  Co.  v.  Sanders  (1913) 
104  Miss.  257,  61  South.  .SOO.  44  L.  R.  A.  (N.  S.)  11.17. 

See  also  Stocliett  v.  Watliins  (1830)  2  GiU  &  J.  (Md.)  326,  20  Am.  Dec.  438, 
page  600,  infra. 


584  '  WAIVER  OF   TORT  (Ch.  6 

PATTERSON  v.  PRIOR. 

(Supreme  Court  of  Indiana,  1SG2,     IS  Ind.  440,  81  Am.  Dec.  367.) 

Appeal  from  the  Clark  Circuit  Court. 

WoRDEN,  J.  Suit  by  Prior  against  the  appellants,  for  work  and 
labor.    Judgment  for  the  plaintiff. 

The  defendants  pleaded  separately  the  general  denial,  and  some  spe- 
cial defences,  to  the  latter  of  which  demurrers  were  sustained.  We 
deem  it  unnecessary  to  examine  the  special  answers,  as  it  seems  to  us 
that  the  substantial  facts  thus  set  up  could  have  been  given  in  evidence 
under  the  general  denial.  The  cause  was  submitted  to  the  Court 
for  trial  on  the  following  agreed  statement  of  the  facts,  which  was 
all  the  evidence  given  in  the  cause,  viz. : 

"It  is  agreed  in  this  case,  that  the  plaintiff,  said  James  Prior,  was 
imprisoned  in  the  State  Prison,  in  the  custody  of  said  Miller,  as  ward- 
en thereof,  under  and  by  virtue  of  a  judgment  of  the  Court  of  Com- 
mon Pleas  of  Vanderburgh  county,  a  certified  copy  of  which  judg- 
ment is  filed  with  defendant's  answer.  That  during  his  confinement 
he  did  work  and  labor  as  a  criminal ;  said  work  and  labor  were  of  the 
value  of  225  dollars ;  said  Patterson,  during  all  the  time  of  said  Prior's 
confinement  in  said  State  Prison,  was  the  lessee  thereof,  and  said 
work  and  labor  were  done  by  the  order  of  said  Miller,  and  said  Pat- 
terson received  all  the  benefit  of  said  labor  as  such  lessee.  The  time 
of  said  Prior's  confinement  commenced  on  the  12th  of  September,  1853, 
and  he  was  discharged  therefrom,  and  ordered  to  be  returned  to  the 
sheriff  of  Vanderburgh  county  upon  a  writ  of  habeas  corpus,  by  him 
sued  out  on  the  first  day  of  January,  1855." 

The  question  as  to  the  sufficiency  of  the  evidence  to  sustain  the 
finding  was  properly  presented  on  a  motion  for  a  new  trial. 

The  appellants  assign  errors  separately. 

At  the  time  the  appellee  was  convicted  and  sent  to  the  penitentiary, 
the  Court  of  Common  Pleas  had  no  jurisdiction  in  that  behalf;  hence, 
the  conviction  and  judgment  were  nullities,  and  furnish  the  appellants 
no  protection  for  tlie  tort  committed  in  confining  him  in  the  peniten- 
tiary. Patterson  v.  Crawford,  12  Ind.  241.  The  appellants  must  be 
presumed  to  have  known  the  law,  and  that  they  had  no  legal  right  to 
imprison  the  appellee,  or  cause  him  to  labor.  That  they  may  have 
been  responsible  to  him  in  some  form  can  not  be  doubted.  They  un- 
doubtedly committed  a  tort,  and  the  question  here  is,  whether  the  tort 
can  be  waived,  and  an  action  maintained  on  an  implied  assumpsit? 

We  will  first  examine  this  question  so  far  as  it  relates  to  Patter- 
son. He,  it  seems,  was  the  lessee  of  the  penitentiary,  and  received  all 
the  benefit  of  the  appellant's  labor.  He  must  be  presumed  to  have  as- 
sented to  the  performance  of  the  labor,  and  being  benefitted  thereby,  the 
law  implies  a  promise  to  pay  what  it  is  reasonably  worth.  It  was  held 
in  Patterson  v.  Crawford,  supra,  that  where  labor  is  performed  for 


Ch.  6)  WAIVER   OF  TORT  585 

the  benefit  of  a  party  witliout  an  express  contract,  if  he  knows  It,  and 
tacitly  assents  to  it,  he  will  be  liable  on  an  implied  contract  to  pay  a 
reasonable  compensation  therefor.  In  our  opinion,  so  far  as  Patter- 
son is  concerned,  the  tort  may  be  waived,  and  an  action  be  maintained 
on  the  implied  assumpsit.  The  case,  however,  is  entirely  different  as 
to  Miller,  the  warden  of  the  penitentiary.  He  received  no  benefit  of 
the  plaintiff's  labor,  and  not  having  been  benefitted,  there  is,  as  to  him, 
no  consideration  to  support  an  implied  assumpsit  to  pay.  The  case 
of  Webster  et  al.  v.  Drinkwater,  5  Greenl.  (Me.)  319,  17  Am.  Dec. 
238,  is  much  in  point,  where  it  was  held,  that  the  party  committing 
a  tort  can  not  be  charged  as  upon  an  implied  contract,  the  tort  being 
waived,  unless  some  benefit  has  actually  accrued  to  him.® 

Per  Curiam.  The  judgment  against  Miller  is  reversed,  and  against 
Patterson  it  is  affirmed.  Costs  to  be  apportioned  between  Patterson, 
and  Prior,  the  appellee.^* 


REYNOLDS  BROS.  v.  PADGETT. 

(Supreme  Court  of  (Georgia,  1894.     94  Ga.  347,  21  S.  E.  570.) 

Petition  for  certiorari,  Appling  county;    J.  L.  Sweat,  Judge. 

Action  by  Reynolds  Bros,  against  E.  P.  Padgett  on  an  implied  con- 
tract.    Defendant  had  judgment,  and  plaintiffs  bring  certiorari. 

Simmons,  J.  All  the  authorities  agree  that  one  who  takes  and  sells 
personal  property  belonging  to  another  without  the  consent  of  the 
owner  is  liable  for  its  value  in  an  action  upon  an  implied  promise  to 
pay  for  the  property.  The  authorities  differ  as  to  whether  such  an 
action  will  lie  where  the  person  taking  the  property  does  not  sell  it, 
but  retains  it  for  his  own  use ;  but  the  weight  of  authority  seems  to 
be  that  the  action  will  lie  where  the  person  who  takes  the  property  en- 
riches himself  or  makes  a  profit  from  the  property,  either  by  selling  it, 
or  by  retaining  it  and  using  it  himself,  with  the  intention  to  convert 
it  permanently.  Pom.  Code  Rem.  §§  567,  569,  and  notes.  The  de- 
fendant in  this  case  did  neither  of  these  things.  He  found  th*  wagon 
in  the  street,  and  hitched  his  horses  to  it,  for  the  purpose  of  going  up- 
on a  fishing  excursion  for  one  day ;  but,  upon  starting  to  go,  the  tongue 
of  the  wagon  was  broken  by  one  of  the  horses,  and  he  unhitched  the 
horses,  and  left  it  in  the  street.    It  was  finally  carried  to  his  lot,  and  left 

»  "Where  there  are  two  or  more  joint  tort-feasors,  and  the  tort  be  waived, 
the  action  for  money  had  and  received  for  the  use  and  benefit  of  the  plaintiff 
cannot  be  sustained  as  to  the  tort-feasor  who  did  not  receive  any  benefit  aris- 
ing from  the  conversion.  In  waiving  the  tort  and  suing  in  this  action  there 
AS  a  ratification  of  the  contract  of  sale  which  constituted  the  conversion,  and 
the  suit  can  only  be  maintained  against  him  or  those  who  received  the  pro- 
ceeds of  such  sale  or  received  the  benefits  of  the  same."  Ward  v.  Hood  (1S90) 
124  Ala.  570,  27  South.  245,  82  Am.  St.  Rep.  205. 

10  Accord:  Tennessee  Coal,  Iron  &  R.  Co.  v.  Butler  (1914)  187  Ala.  51,  65 
South.  804. 

Compare  Ilickam  v.  Hickam  (1891)  46  Mo.  App.  496,  stated  briefly  in  note 
page  436,  supra. 


586  WAIVER  OF  TORT  (Ch.  6 

there,  but  there  is  no  evidence  that  he  ever  made  any  claim  to  the 
wagon  or  any  further  use  of  it,  nor  was  anything  further  proven 
tending  to  show  that  he  intended  to  convert  it  permanently  to  his 
own  use.  On  the  contrary,  the  indications  are  that  he  was  holding  it 
for  the  use  of  the  owner. 

We,  therefore,  think  the  trial  judge  was  right  in  holding  that  an 
action  upon  an  implied  contract  would  not  lie,  but  that  the  plaintiflf 
must  sue  in  tort  for  the  damage  to  his  property.    Judgment  affirmed.^^ 


WESTERN  ASSURANCE  COMPANY  v.  TOWLE. 
(Supreme  Court  of  Wisconsin,  1SS6.     65  Wis.  247,  26  N.  W.  104.) 

Appeal  from  circuit  court,  Outagamie  county. 

Taylor,  J.^-  This  action  was  brought  by  the  insurance  company  to 
recover  from  the  appellant  and  Swan  about  $1,000,  which  the  com- 
pany had  paid  to  them  upon  a  policy  of  fire  insurance  issued  by  said 
company  to  Towle  &  Swan  as  partners,  upon  an  alleged  loss  by  fire 
of  property  covered  by  said  policy.  The  complaint  charges  that  the 
payment  of  the  $1,000-  was  procured  by  the  defendants  from  the 
company  by  making  false  and  fraudulent  proofs  of  loss  and  by 
false  swearing  on  the  part  of  the  defendants,  Towle  &  Swan,  as  to 
the  extent  of  their  losses ;  and  that,  relying  upon  such  false  state- 
ments and  proofs  of  loss,  and  not  knowing  of  their  falsity  at  the 
time,  the  plaintiff  paid  the  $1,000  to  the  defendants;  that  afterwards, 
upon  ascertaining  the  falsity  of  their  statements  and  proofs  of  loss, 
and  that  they  did  not  in  fact  sustain  the  losses  claimed  by  them,  and 
that  there  was  in  fact  but  a  very  small  portion  of  said  $1,000  due 
to  them  for  losses  under  said  policy,  the  plaintiff  demanded  of  said 

11  Accord:  Fanson  v.  Linsley  (1S7S)  20  Kan.  2.35;  Tightmeyor  v.  Mongold 
(tS7S)  20  Kan.  90.  In  the  latter  case  cattle  belonging  to  the  defendant  (who 
was  the  plaintiff  in  error)  trespassed  upon  and  damaged  plaintiff's  crops.  Hor- 
ton,  C.  J.,  speaking  for  the  court,  said:  "In  our  examination  of  authorities,  we 
have  found  no  case  supporting  the  theory  of  the  court  below,  that  where  dam- 
ages have  been  committed  by  one's  cattle  to  the  crops  or  personal  property  of 
another  without  the  owner's  participation  in  the  trespass,  or  benefit  therefrom, 
and  in  the  absence  of  any  promise,  that  the  party  injured  in  his  property  could 
waive  the  tort  and  reeover  his  damages  in  an  action  on  contract.  That  is  tliis 
case.  Therefore,  when  it  appeared  that  the  items  in  the  account  of  Mongold 
charged  as  'potato  crop'  and  'shocks  of  corn-fodder'  were  for  damages  done  to 
his  potatoes  and  corn  by  the  stock  of  the  plaintiff  in  error,  and  no  promise 
to  pay  for  the  damage  was  shown,  nor  any  participation  by  plaintiff  in  error 
in  the  trespass,  or  benefit  to  him,  the  district  court  sliould  have  sustained  tlie 
objection  to  the  evidence  as  irrelevant  and  incompetent.  Its  failure  to  do  so 
was  error.  If  the  plaintiff  in  error  had  committed  a  willful  trespass  upon  the 
land  of  the  defendant  in  error  by  deliberately  turning  his  stock  thereon,  in  or- 
der that  they  might  feed  upon  the  potatoes  and  corn-fodder,  the  defendant  in 
error,  within  the  rule  adopted  in  Wisconsin,  might  have  waived  the  tort  and 
sued  upon  an  implied  contract  for  the  price  and  value  of  his  potatoes  and 
fodder.    This  proof  was  not  made,  and  this  case  is  not  within  that  decision." 

12  Portions  of  the  opinion  are  omitted. 


Ch.  6)  WAIVER  OF  TORT  587 

defendants  the  $1,000  so  paid  to  them  by  reason  of  said  false  and 
untrue  proofs  of  loss  and  fraudulent  representations ;  that  the  defend- 
ants have  neglected  and  refused  to  pay  the  same.  Judgment  is  de- 
manded for  the  said  sum  of  $1,000  with  interest  from  the  twenty- 
seventh  day  of  September,  1881,  that  being  the  date  of  the  payment 
thereof  to  them  by  the  company.     *     *     * 

The  provisions  in  the  policy  in  regard  to  fraudulent  overestimates 
of  the  loss,  or  false  swearing  as  to  the  extent  of  the  loss,  working 
a  forfeiture  of  their  right  to  recover  anything  upon  the  policy,  do 
not  effect  the  rights  of  the  plaintiff  in  this  action  to  recover  back  mon- 
ey paid  on  the  policy,  nor  enlarge  its  rights  beyond  what  they  would 
have  been  had  no  such  provision  been  found  in  the  policy.  False 
swearing  and  false  valuation  in  proofs  of  loss  might  have  been  a  good 
defense  to  a  recovery  upon  the  policy  had  the  plaintiff  refused  to  pay  the 
loss ;  but  it  cannot  be  made  the  basis  of  a  right  to  recover  back  mon- 
ey already  paid  upon  the  policy.  The  plaintiff's  right  to  recover 
depends  upon  proof  establishing  the  fact  that  the  company  has  paid 
more  money  than  covered  the  loss  sustained  by  the  defendants,  and 
that  such  payment  was  procured  by  the  false  and  fraudulent  acts  of 
the  defendants.  This  action  for  money  had  and  received  to  the 
plaintiff's  use  is  in  no  way  founded  upon  the  contract  of  insurance,  but 
upon  the  fact  that  false  and  fraudulent  representations  were  made  by 
the  defendants  in  order  to  induce  the  plaintiff  to  pay  the  same.  This 
was  so  expressly  held  in  Northwestern  Life  Ins.  Co.  v.  Elliott  (C.  C.) 
5  Fed.  225.     *     *     * 

The  plaintiff  in  the  case  at  bar,  in  order  to  avail  itself  of  the  right 
to  sue  out  an  attachment  in  this  action,  elected  to  waive  the  action  for 
the  wrong  committed  by  the  defendants,  and  bring  their  action  for 
money  had  and  received  to  its  use,  upon  the  implied  assumpsit  to  repay 
the  same.  In  this  action  it  recovers  the  money,  if  it  recovers  at  all, 
on  the  ground  that  it  has  paid  for  a  loss  which  did  not  in  fact  occur. 
If  the  loss  did  in  fact  occur,  to  the  extent  of  the  payment  made,  then 
in  equity  and  good  conscience  the  money  ought  not  to  be  refunded,  and 
no  promise  to  refund  the  same  could  be  presumed  in  favor  of  the  plain- 
tiff; and  if  there  was  a  loss,  though  not  as  great  as  the  money  paid, 
and  the  excess  of  payment  was  made  on  account  of  the  fraud  of  de- 
fendants, as  to  such  excess,  there  would  arise  an  implied  promise  on 
the  part  of  the  defendants  to  refund  the  excess.  The  fraud  con- 
sists in  falsely  overestimating  the  claim,  and  demanding  and  receiv- 
ing the  excess  beyond  the  actual  loss,  and  not  in  receiving  the  money 
which  was  justly  due  for  a  real  loss  sustained.  We  think,  therefore, 
that  this  action  for  money  had  and  received,  which  has  always  been 
considered  an  action  at  law,  which  is  maintainable  upon  equitable  prin- 
ciples, can  only  avail  the  plaintiff  for  the  purpose  of  recovering  what 
it  has  paid  in  excess  of  the  real  loss,  if  any,  which  was  sustained  by 
the  defendants,  unless  the  jury  should  find  that  the  fire  which  de- 


588  WAIVER   OF   TORT  (Cll.  G 

stroyed  the  property  was  caused,  either  directly  or  indirectly,  by  the 
wrongful  acts  of  the  defendants,  or  one  of  them.  If  the  latter  fact 
was  made  to  appear,  there  would  be  no'  loss  under  the  policy  which 
the  plaintiff  ought  to  pay.  If,  on  the  other  hand,  there  was  in  fact  an 
honest  loss  under  the  policy,  and  the  plaintiff  has  paid  more  than  such 
honest  loss  by  reason  of  the  fraud  of  defendants,  that  fact  does  not 
entitle  the  plaintiff  to  recover  back  in  this  action  the  amount  of  money 
which  is  covered  by  the  honest  loss.     *     *     * 

The  learned  circuit  judge  instructed  the  jury  that  if  they  found 
from  the  evidence  that  the  loss  of  defendants  was  small,  and  material- 
ly less  than  the  amount  of  the  policies  of  insurance,  and  that  the 
defendants  knew  that  fact  when  they  made  their  proofs  of  loss,  and  in- 
tentionally and  knowingly  stated  the  amount  of  the  loss  to  be  mate- 
rially greater  than  they  knew  it  to  be,  for  the  purpose  of  unjustly  pro- 
curing from  the  plaintiff  more  than  the  amount  of  the  loss,  and  the 
plaintiff  paid  the  loss,  relying  upon  such  proofs,  and  in  ignorance  of 
its  falsity,  then  the  jury  should  find  a  verdict  for  the  plaintiff  for  the 
full  sum  paid  by  it,  with  interest  from  the  date  of  payment.  This 
instruction  was  excepted  to  by  the  defendant,  Towle.  As  stated  above, 
this  instruction  was  erroneous,  and  did  not  state  the  true  rule  for  es- 
tablishing the  amount  the  plaintiff  should  recover  in  this  action  upon 
that  branch  of  the  case.  As  there  was  only  a  general  verdict  in  the 
case,  we  cannot  determine  that  the  verdict  was  not  based  upon  the 
fact  that  there  was  a  fraudulent  overvaluation  of  the  amount  of  the 
losses  of  the  defendants.  This  erroneous  charge  may  have  induced 
the  jury  to  render  a  verdict  for  the  whole  sum  paid  by  the  plaintiff, 
notwithstanding  they  found  in  favor  of  the  defendant  Towle  on  the 
charge  that  the  fire  was  wrongfully  set  by  the  defendants,  or  one 
of  them. 

The  judgment  of  the  circuit  court  is  reversed,  and  the  cause  remand- 
ed for  a  new  trial. ^' 


BRISTOW  V.  EASTMAN. 

(Nisi  Prius,  before  Lord  Kenyon,  O.  J.,  1794.    1  Esp.  172.) 
This  case  is  printed  at  page  23,  supra. 

18  See,  also,  Schank  y.  Schucliman  (1014)  212  N.  T.  352,  106  N.  E.  127. 


Ch.  6)  WAIVER  OF  TORT  589 

NEATE  V.  HARDING. 

(Court  of  Exchequer,  1851.     6  Exch.  349.) 

Assumpsit  for  money  had  and  received.  Plea,  non  assumpsit 
At  the  trial,  before  Martin,  B.,  at  the  Wiltshire  Spring  Assizes,  the 
following  facts  appeared:  The  plaintiff's  mother  had  for  some  time 
received  parochial  relief,  but  there  being  strong  ground  for  suspecting 
that  her  poverty  was  feigned,  and  that  she  was  in  reality  possessed  of 
a  considerable  sum  of  money,  the  defendant  Harding,  who  was  as- 
sistant overseer  of  the  Clane  Union,  and  the  defendant  Bowns,  one  of 
the  Wiltshire  county  constabulary,  went  together  to  her  house  for 
the  purpose  of  searching  for  the  money,  Bowns  remained  outside, 
while  Harding  entered  the  house,  and  having  found  in  a  cupboard 
£163.,  he  took  it  away  with  him.  The  money  was  afterwards  taken  to 
a  bank  by  both  the  defendants,  and  paid  in  to  their  joint  account.  It 
was  proved  that  the  money  belonged  to  the  plaintiff.  On  the  part 
of  the  defendants,  it  was  objected,  that  under  these  circumstances 
the  action  for  money  had  and  received  would  not  lie;  and  also  that 
there  was  no  evidence  of  a  joint  taking  by  Bowns.  The  learned 
Judge  overruled  the  objections,  and  directed  a  verdict  for  the  plain- 
tiff, reserving  leave  for  the  defendants  to  move  to  enter  a  nonsuit. 
Pollock,  C.  B.^*  We  all  agree  that  there  ought  to  be  no  rule. 
The  owner  of  property  wrongfully  taken  has  a  right  to  follow  it,  and, 
subject  to  a  change  by  sale  in  market  overt,  treat  it  as  his  own,  and 
adopt  any  act  done  to  it.  That  doctrine  was  carried  to  a  great  extent 
in  Taylor  v.  Plumer,  3  M.  &  Sel.  562,  and  is  fully  explained  by  Lord 
Ellenborough  in  delivering  the  judgment  of  the  Court.  In  this  case 
the  money  taken  belonged  to  the  plaintiff;  and  it  did  not  cease  to  be 
his  money  because  it  was  in  the  defendants'  hands ;  he  was  therefore 
at  liberty  to  waive  the  wrongful  act,  and  treat  it  as  money  received 
by  the  defendants  for  his  use.  The  mere  presence  of  the  defendant 
Bowns  might  not  have  sufficed  to  render  him  liable ;  but  there  is 
evidence  that  he  concurred  in  placing  the  money  in  the  bank  in  the 
joint  names.     Rule  refused.^*' 


MASON  V.  WAITE. 

(Supreme  Judicial  Court  of  Massachusetts,  1822.     17  Mass.  5G0.) 

Indebitatus  assumpsit  for  money  had  and  received  by  the  defend- 
ant, to  the  use  of  the  plaintiff.  The  facts  proved  at  the  trial  before 
the  chief  justice,  at  the  last  November  term  in  this  county,  were,  that 
four  or  five  years  previous,  one  John  Sargent  was  the  driver  of  a 
stage  between  Gloucester  and  Boston,  and  was  accustomed  to  transact 

1*  The  concurring  opinions  of  Parke,  Piatt,  and  Martin,  BB.,  are  omitted. 
15  Accord:   (iould  v.  Baker  (1806)  12  Tex.  Civ.  App.  6G9,  35  S.  W.  708;  Howe 
T.  Ciancey  (18G5)  53  Me.  130. 


590  WAIVER  OF  TORT  (Ch.  6 

business  in  Boston  for  persons  living  in  Gloucester;  and  particularly 
in  bringing  sums  of  money  for  them,  to  be  paid  according  to  their  direc- 
tions; that  about  that  time  Sargent  received  of  the  plaintiff  150  dol- 
lars in  bank  bills,  to  carry  to  Boston,  which  were  put  up  by  them- 
selves in  a  separate  parcel,  Sargent  having  at  the  same  time  other 
parcels  of  money,  which  he  had  received  for  a  similar  purpose,  from 
other  persons  in  Gloucester;  that  on  his  arrival  at  Boston,  he  was 
invited  by  a  young  man  to  go  to  a  house  kept  by  the  defendant  and 
another  person  by  the  name  of  Hilton,  where  a  faro  bank  or  table 
was  kept  by  those  two  persons ;  and  where,  in  the  course  of  three  or 
four  evenings,  he  lost  the  sum  of  900  dollars,  of  money  he  had  re- 
ceived of  persons  in  Gloucester,  as  above  stated;  tliat  the  defendant 
and  the  said  Hilton  were  the  persons  who  won  the  money,  which  was 
actually  paid  to  them ;  and  particularly,  that  the  bills  received  by  Sar- 
gent of  the  plaintiff,  as  above  stated,  made  part  of  the  $900,  which  he 
lost  and  paid  over  to  the  defendant  and  Hilton.  This  latter,  on  ap- 
plication to  him,  had  paid  to  the  plaintiff  one  half  the  amount  of  the 
money,  which  Sargent  received  of  him. 

Upon  these  facts  the  jury  were  instructed,  that  the  plaintiff  was 
entitled  by  law  to  recover  seventy-five  dollars,  with  interest  from  the 
time  the  defendant  had  received  it ;  and  they  returned  their  verdict  ac- 
cordingly. The  defendant  insisted  that  the  action  could  not  be  main- 
tained upon  these  facts ;  and  if  such  should  be  the  opinion  of  the 
Court,  the  verdict  was  to  be  set  aside,  and  the  plaintiff  become  non- 
suit; otherwise  judgment  was  to  be  rendered  on  the  verdict,  with  ad- 
ditional interest. 

Parker,  C.  J.  The  identical  bills,  paid  by  Sargent  to  the  defend- 
ant, were  proved  to  be  the  property  of  the  plaintiff.  They  were  com- 
mitted to  Sargent,  as  a  carrier,  to  pay  to  the  order  of  the  plaintiff. 
They  came  into  the  hands  of  the  defendant  unlawfully;  for  gaming 
is  unlawful  by  our  statute.  The  defendant  could  have  gained  no  prop- 
erty in  them,  even  as  against  Sargent,  who  might  have  recovered  them 
back  within  three  months.  Any  other  person  might  have  recovered 
double  the  amount,  without  limitation  of  time ;  and  the  defendant  was 
further  liable  to  indictment.  How  then  can  he  have  a  right  to  retain 
against  the  true  owner,  any  more  than  he  would  a  horse,  or  any.  other 
chattel,  acquired  in  the  same  way?  It  is  true,  in  such  a  case,  trover 
would  have  been  the  proper  action;  and,  perhaps,  would  have  been 
the  better  action  in  this  case,  but  for  the  difficulty  of  identifying  bank, 
notes. 

We  do  not  see,  however,  why  the  action  for  money  had  and  received 
will  not  lie.  The  notes  were  paid  and  received  as  money ;  and  as  to 
any  want  of  privity,  or  any  implied  promise,  the  law  seems  to  be,  that 
where  one  has  received  the  money  of  another,  and  has  not  a  right 
conscientioiisly  to  retain  it,  the  law  implies  a  promise  that  he  will  pay 
it  over. 


Ch.  6)  WAIVER   OF  TORT  591 

Had  Sargent  paid  the  money  to  an  innocent  person,  for  a  valuable 
consideration,  or  to  satisfy  a  debt  of  his  own,  the  case  might  have  been 
different;  as  it  would  be  mischievous  to  require  of  persons,  who  re- 
ceive money  in  the  way  of  business,  or  in  payment  of  debts,  to  look 
into  the  authority  of  him  from  whom  they  receive  it. 

Judgment  on  the  verdict/* 


SPAULDING  v.  KENDRICIC  ^ 

(Supreme  Judicial  Court  of  Massachusetts,  1S5)S.     172  Mass.  71,  51  N.  E.  453.) 

Bill  in  equity,  by  the  receiver  of  the  Stockbridge  Savings  Bank,  to 
recover  the  sum  of  five  thousand  dollars,  the  property  of  the  bank,  al- 
leged to  have  been  misappropriated  by  one  Frederick  A.  Hobbs,  a 
former  receiver  of  the  bank,  who  had  been  removed  from  his  office. 
Trial  in  the  Superior  Court,  before  Lilley,  J.,  who  found  for  the  de- 
fendant Kendrick,  who  alone  defended;  and  the  plaintiff  alleged  ex- 
ceptions. 

Knowlton,  J.  The  bill  alleges  that  the  sum  of  $5,000  was  taken 
by  Hobbs  from  the  funds  in  his  hands  as  receiver,  and  sent  to  William 
A.  Dickinson,  of  Amherst,  in  the  form  of  a  draft,  and  by  him  delivered 
to  one  James  I.  Cooper,  who  received  it  as  the  attorney  of  the  defend- 
ant Kendrick,  and  turned  it  over  to  him.  The  plaintiff  discontinued 
his  suit  as  against  all  the  defendants  except  Kendrick  and  Hobbs,  and 
Kendrick  alone  defends.  Kendrick  and  one  Stockbridge  were  sureties 
for  Hobbs  upon  a  bond  given  by  him  as  trustee  under  the  will  of  one 
Dickinson,  in  the  sum  of  $8,000,  and  previously  to  the  receipt  of  the 
money  Kendrick  had  filed  a  petition  in  the  probate  court  asking  to 
be  relieved  from  further  liability  on  the  bond. 

We  may  assume,  upon  the  evidence,  that  the  money  belonged  to  the 
bank,  and  was  misappropriated  by  Hobbs.     There  was  evidence  to 

16  In  Brundred  v.  Rice  (1S92)  49  Ohio  St.  640,  32  N.  E.  1C9.  34  Am.  St.  Rep. 
589,  a  railroad  company  contracted  with  defendant  to  cliarge  defendant  a 
certain  flat  rate  for  the  transportation  of  oil,  and  to  cliarse  all  other  sliipi>ers 
twice  that  amount,  and  to  pay  to  defendant  one-hnlf  the  snm  thus  charged 
to  other  shippers.  Plaintiff,  a  shipper  of  oil,  having  paid  the  railroad  com- 
pany the  greater  rate,  in  ignorance  of  the  agreement  between  the  railroad  and 
defendant,  and  the  railroad  having  paid  defendant  a  sum  equal  to  one-half 
thereof,  plaintiff  now  brings  indebitatus  assumpsit  against  deftnidant  to  recov- 
er the  sum  so  received  by  defendant.  The  court  held  for  the  plaintiff,  on  the 
ground  that  the  contract  with  defendant  and  the  excessive  charge  to  plain- 
tiff were  unlawful,  and  thus  since  plaintiff's  money  had  come  wrongfully 
into  defendant's  hands,  assumpsit  would  lie  to  recover  the  same;  "for  the 
action  lies  in  every  instance  where  one  has  come  into  possession  of  money 
w"hich  should  in  good  conscience  be  refunded  to  another." 

In  Hindmarch  v.  Hoffman  (18S9)  127  Pa.  284,  18  Atl.  14,  4  L.  R.  A.  368. 
14  Am.  St.  Rep.  842,  one  Savanock  stole  money  from  plaintiff  and  deposited 
it  with  defendant  (a  banker)  to  he  returned  to  him  or  upon  his  order.  Before 
Savanock  had  withdrawn  the  money  plaintiff  notilied  defendant  of  the  theft 
and  claimed  the  money.  Thereafter  defendant  paid  the  money  to  one  who 
held  an  order  from  Savanock.  The  court  held  that  plaintiff  might  recover 
from  defendant  the  amount  of  the  deposit  in  indebitatus  assumpsit. 


592  WAIVER  OF  TORT  (Ch.  6 

warrant  the  finding  of  the  judge  that  the  defendant  Kendrick  had  no 
knowledge  that  the  money  was  otlier  than  the  property  of  Hobbs,  and 
that  he  received  it  tlirough  his  attorney  in  good  faith,  and  as  security 
for  a  habiHty  of  greater  amount  than  $5,000,  and  on  account  thereof 
forbore  to  prosecute  his  petition  for  relief  as  surety  on  the  bond  of 
Hobbs.  The  evidence  warranted  a  finding  that  his  receipt  of  it  was 
the  same,  in  legal  effect,  as  if  it  had  been  put  into  his  possession  by 
Hobbs  with  his  own  hand,  to  be  held  as  security  against  loss  as  surety 
on  the  bond.  The  evidence  tended  to  show  that  the  draft  was  sent 
to  Mr.  Dickinson,  to  be  held  and  used  as  such  security,  and  that,  if 
the  delivery  of  it  to  Mr.  Cooper  was  not  expressly  autliorized  by 
Hobbs,  it  was  within  the  general  purpose  of  Hobbs,  and  was  soon  after- 
wards known  to  him  and  ratified  by  him. 

The  law  of  the  case  is  settled  by  numerous  decisions.  If  a  thief 
gives  stolen  money,  or  negotiable  securities  before  their  maturity,  in 
payment  of  his  debt,  or  as  security  for  it,  to  one  who  in  good  faith 
receives  the  money  or  securities  as  belonging  to  him,  the  creditor  can 
hold  the  property  as  against  the  true  owner.  As  between  the  payor 
and  the  payee  there  is  no  mistake  which  affects  the  validity  of  the 
transaction.  One  receiving  money  or  negotiable  securities  in  payment 
of,  or  as  security  for,  an  existing  debt,  is  not  bound  to  inquire  where 
the  money  or  securities  were  obtained.  It  is  better  that  money  or  a 
negotiable  security  passing  from  hand  to  hand,  to  one  who  rightly  re- 
ceives it  for  a  valuable  consideration,  should  carry  on  its  face  its 
own  credentials.  Insurance  Co.  v.  Abbott,  131  Mass.  397;  Bank  v. 
Plimpton,  17  Pick.  159,  28  Am.  Dec.  286;  Greenfield  School  Dist.  v. 
First  Nat.  Bank,  102  Mass.  174;  Thacher  v.  Pray,  113  Mass.  291, 
18  Am.  Rep.  480;  Ex  parte  Apsey,  3  Brown,  Ch.  265 ;  Jaques  v.  Mar- 
quand,  6  Cow.  (N.  Y.)  497;  Dunlap  v.  Limes,  49  Iowa,  177.  See, 
also.  Mason  v.  Waite,  17  Mass.  560-563 ;  Worcester  Co.  Bank  v.  Dor- 
chester &  Milton  Bank,  10  Cush.  488,  57  Am.  Dec.  120.  It  has  often 
been  decided  in  this  commonwealth  that  a  pre-existing  debt  is  a  valua- 
ble consideration  for  a  payment  made,  or  a  security  given,  on  account 
of  it.  Blanchard  v.  Stevens,  3  Cush.  162,  50  Am.  Dec.  723 ;  Fisher 
V.  Fisher,  98  Mass.  303;  Goodwin  v.  Trust  Co.,  152  Mass.  189-199, 
25  N.  E.  100;  Merchants'  Nat.  Bank  of  Lowell  v.  Haverhill  Iron 
Works,  159  Mass.  158,  34  N.  E.  93;  Bank  v.  Morse,  163  Mass.  383, 
40  N.  E.  180. 

Exceptions  overruled. ^^ 

17  Compare  Stephens  v.  Board  of  Education  (1S79)  79  N.  T.  183,  35  Am.  Rep. 
511,  supra,  page  108. 

One  who  buys  a  chattel  fi"om  a  converter,  however  "innocently,"  is  himself 
a  converter  (though  some  courts  hold  that  he  is  entitled  to  a  demand).  Thus 
(subject,  in  some  jurisdictions,  to  the  rule  of  Jones  v.  Hoar,  page  595,  infra) 
the  true  owner  may  "waive  the  tort"  as  against  such  purchaser  and  sue  ni 
assumpsit,  and  it  is  no  defence  that  such  purchaser  has  already  made  payment 
to  the  original  wrongdoer.     Roberts  v.  Evans  (1872)  43.  Cal.  .380. 

In  Kuapp  V.  Hobbs  (1871)  50  N.  H.  47G,  an  agent  to  sell,  employed  by  a  cou- 


Ch.  6)  WAIVER  OF  TORT  59i 


BROWN  V.  BROWN. 

(Supreme  Court  of  New  York,  General  Term,  Third  Department,  1886.    40 

Hun,  418.) 

Appeal  from  a  judgment  in  favor  of  the  defendant,  entered  in  Co- 
lumbia county  upon  the  report  of  a  referee. 

This  case  came  before  the  General  Term  upon  the  judgment-roll 
and  without  the  evidence.    The  referee  reported  as  follows : 

First.  That  prior  to  and  on  and  for  some  time  after  August  27,  1877, 
the  plaintiff  and  defendant  lived  together  as  husband  and  wife  at 
South  Pownal,  Vermont. 

Second.  That  while  so  living  together  the  plaintiff  was  called  by 
the  defendant  Annie  Brown. 

Third.  That  on  the  27th  day  of  August,  1877,  the  defendant  de- 
posited in  the  Hoosac  Savings  Bank  of  North  Adams,  in  the  State  of 
Massachusetts,  $1,000  to  the  credit  of  Annie  Brown,  but  with  the  un- 
derstanding with  the  officers  of  the  bank,  that  the  sum  so  deposited 
should  be  payable  to  the  order  of  himself. 

Fourth.  That  shortly  thereafter  the  defendant  gave  to  the  plaintiff 
the  bank-book  issued  by  said  bank  and  representing  such  deposit,  with 
intent  to  transfer  and  assign  to  her  the  indebtedness  of  said  bank  on 
account  of  such  deposit  and  all  control  over  the  same. 

Fifth.  That  said  book  remained  in  the  possession  of  the  plaintiff, 
and  was  held  by  her  as  her  own  until  a  long  time  thereafter,  when  the 
defendant  took  the  same  from  the  plaintiff  by  force  and  against  her 
will. 

Sixth.  That  the  plaintiff  and  defendant  thereupon  separated  and 
did  not  afterwards  live  together  as  husband  and  wife. 

Seventh.  That  the  plaintiff  notified  the  officers  of  said  bank  that 
she  was  the  owner  of  said  book  and  the  moneys  represented  thereby, 
and  demanded  payment  of  the  same  to  herself,  which  was  refused, 
whereupon  she  forbade  payment  of  the  same  to  the  defendant. 

Eighth.  That  afterwards  said  defendant  took  said  book  to  said  bank 
and  surrendered  the  said  book  and  drew  all  the  moneys  and  interest 
due  upon  the  account  represented  by  said  book,  amounting  in  the  ag- 
gregate to  $1,077,  and  took  and  kept  the  same  to  his  own  use. 

As  a  conclusion  of  law  I  find  that  the  defendant  is  entitled  to  judg- 
ment for  his  costs  therein,  which  I  accordingly  direct. 

The  referee  also  found,  in  response  to  requests  of  the  plaintiff:  That 
the  defendant  made  a  valid  gift  to  plaintiff  of  the  book  and  of  the  title 
to  the  money  represented  by  it.    That  the  bank,  upon  payment  to  de- 

yerter,  who  had  accounted  to  his  principal,  was  held  liable  in  indebitatus  as- 
sumpsit to  the  owner  (in  this  case  a  mortgagee)  of  the  chattel  for  the  proceeds 
of  the  sale. 

Contra  (on  the  ground  that  the  agent  received  no  benefit) :  Greer  v.  New- 
land  (1904)  70  Kan.  310,  77  Pac.  98,  70  L.  R.  A.  554,  109  Am.  St.  Rep.  424. 

Thurs.Quasi  Cont. — 38 


594  WAIVER  OF  TORT  (Ch.  ft 

fendant,  retained  the  book.  The  referee  stated  In  his  opinion,  and  the 
fact  is  implied  in  the  referee's  findings  upon  other  requests  of  the  plain- 
tiff, that  the  rules  of  the  bank  required  the  production  of  the  book  as 
a  condition  of  payment. 

Landon,  J.  This  case  was  decided  in  favor  of  the  defendant  by  tlie 
application  of  the  well  settled  rule,  that  where  two  rival  claimants 
demand  payment,  each  in  his  own  right,  of  the  debt  which  the  debtor 
owes  to  one  of  them  only,  if  the  debtor  pays  the  wrong  claimant,  the 
debt  due  to  the  rightful  creditor  is  not  thereby  affected,  and  he  ac- 
quires no  title  to  recover  the  money  of  tlie  party  who  wrongfully 
claimed  and  received  it.  Patrick  v.  Metcalf,  Z7  N.  Y.  332;  Butter- 
worth  V.  Gould,  41  N.  Y.  450.^*  But  this  rule  rests  upon  the  basis 
that  the  wrongful  claimant  obtains  the  money  upon  his  own  independ- 
ent claim  ;  that  in  using  his  own  he  does  not  prejudice  his  competitors ; 
that  he  does  not  exercise  any  right  or  title  of  which  he  has  wrongfully 
divested  his  competitor ;  that  he  is  not  assuming  any  agency  for  him ; 
that  he  is  not  in  privity  with  him.  Carver  v.  Creque,  48  N.  Y.  385 ; 
Peckham  v.  Van  Wagenen,  83  N.  Y.  40,  38  Am.  Rep.  392 ;  Hathaway 
V.  Town  of  Cincinnati,  62  N.  Y.  434 ;  Bradley  v.  Root,  5  Paige,  632. 

Here  the  defendant  had  made  an  absolute  gift  of  the  bank-book,  and 
of  the  title  to  demand  and  receive  the  money  represented  by  it,  to  the 
plaintiff.  When  the  defendant,  by  force  and  against  the  will  of  the 
plaintiff,  took  the  bank-book  from  her,  he  knew  that  he  had  no  title  to 
it  or  the  money  represented  by  it.  Whatever  claim  he  might  assert 
to  the  money  he  well  knew  rested  upon  his  fraud,  if  not  upon  his 

18  In  Sergeant  &  Harris  v.  Stryker  (1S3S)  IG  N.  J.  Law,  464,  32  Am.  Dee. 
404,  one  .Tones,  a  sheriff,  offered  a  reward  of  J);50  for  tlie  apiirehension  of 
a  prisoner  wlio  liad  escaped  from  jail.  Stryker  appreliended  tlie  pnsoner 
and  thns  became  entitled  to  the  reward,  but  Serjeant  and  Harris  falsely  in- 
formed the  sheriff  that  they  had  taken  up  the  prisoner,  and  the  sheriff  there- 
upon paid  them  the  amount  of  reward.  Held,  that  an  action  for  money  had 
and  received  could  not  be  maintained  by  Stryker  against  Sers?eant  and  Harris. 
The  court,  speaking  through  Ilomblower,  C.  J.,  said  :  "Tliat  the  sheriff  did 
not  pay  the  money  to  them  [Sergeant  and  Harrisl  for  Stryker,  he  expressly 
testifies;  nor  did  thoy  profess  so  to  receive  it;  but  on  the  contrary,  claimed 
it  as  their  own.  If  then  the  law  can  raise  any  implication  that  the  defend- 
ants received  the  money  to  and  for  the  use  of  Stryker,  it  nuist  be  on  the 
ground  that  they  practised  a  fraud  on  the  sheriff'.  Rut  I  cannot  well  perceive 
how  a  fraud  on  one  man,  can  enure  to  the  benefit  of  another;  or  how  a  fraud 
practised  on  the  sheriff',  can  raise  a  promise  to  pay  money  to  the  plaintiff'.  If, 
indeed,  the  money  had  been  paid  to  Stryker,  and  left  by  him  in  a  bag,  or 
purse,  with  the  sheriff'  for  safe  keeping,  and  the  defendants  had  got  posses- 
sion of  it  by  falsehood  and  misrepresentation,  then  it  would  have  been  a 
fraud  on  the  plaintiff':  it  would  have  been  his  money,  and  he  might  have  pur- 
sued it  in  this  form  of  action.  But  however  unfair  towards  the  sheriff  the 
conduct  of  the  defendants  has  been,  they  did  not  thereby  get  Strylier's  money 
— they  got  Jones'  money,  and  ex  requo  et  bono,  they  ought  not  to  retain  it 
from  him — they  are  bound  by  the  ties  of  natural  justice  and  equity,  to  refund 
it  to  him ;  and  in  his  favour,  the  law  considers  it  in  their  hands,  as  money 
received  by  them  to  his  use — not  to  the  use  of  any  other  person.  The  money, 
that  Jones  paid  to  Sergeant  and  Harris,  was  no  more  Stryker's  money  than 
it  was  the  money  of  any  other  creditor  of  Jones." 

But  see,  contra,  Claxton  v.  Kay  (1912)  101  Ark.  350,  142  S.  "W.  517,  Ann.  Cas. 
1913E,  972. 


Ch.  6)  WAIVER   OF  TORT  51)5 

crime.  But  he  thus  obtained  the  physical  power  and  apparent  author- 
ity to  represent  the  plaintiff  in  the  presentation  of  the  book  to  the 
bank,  and  by  the  act  of  presenting  the  book  he  did  represent  that  what- 
ever title  or  authority  she  had  in  the  matter  was  exercisable  by  him, 
and  he  thus  obtained  the  money. 

He  can  take  no  advantage  from  his  own  wrong,  and  since  he  could 
not,  in  the  absence  of  any  title  from  the  plaintiff,  lawfully,  as  against 
her,  obtain  the  money  except  as  her  agent,  he  may  not,  with  the  pro- 
ceeds in  his  pocket,  deny  that  he  obtained  them  in  the  only  manner 
in  which  he  could  lawfully  obtain  them. 

It  is  probable  the  plaintiff  could  have  maintained  an  action  against 
the  bank,  since  the  bank  had  notice  of  her  rights.  But  it  was  open 
to  the  plaintiff  to  elect  to  adopt  the  acts  of  the  defendant  or  repudiate 
them.  He  shall  not  be  heard  to  plead  his  own  turpitude,  and  is  there- 
fore estopped  to  deny  that  he  did  not  assume  to  act  as  the  agent  of  the 
plaintiff.  She  may  waive  the  tort,  adopt  his  acts,  and  compel  him  to 
restore  their  fruits. 

It  comes  to  the  same  result  if  we  regard  the  defendant  as  trustee  ex 
maleficio.  He  knew  that  by  his  gift  the  book  and  the  money  it  repre- 
sented, and  the  rights  it  conferred,  were  the  plaintiff's.  He  took  the 
book  by  force,  exercised  her  rights,  and  obtained  the  money.  It  was 
his  duty  to  do  nothing  with  her  property  and  her  rights  for  his  own  ad- 
vantage, and  he  is,  at  her  election,  her  trustee  ex  maleficio  of  the  pro- 
ceeds of  his  acts  of  usurpation.  He  held  the  proceeds  of  the  book  by 
same  title  that  he  held  the  book,  and  as  he  had  no  title  to  the  book  he 
had  none  to  its  proceeds,  and  must  account  to  the  true  owner.  Com- 
stock  V.  Hier,  7Z  N.  Y.  269,  29  Am.  Rep.  142. 

The  judgment  should  be  reversed,  new  trial  granted,  referee  dis- 
charged, costs  to  abide  event.^° 


JONES  V.  HOAR. 
(Supreme  Judicial  Court  of  Massachusetts,  1S27.    5  Ticlv.  2S5.) 

Assumpsit  upon  a  promissory  note,  for  goods  sold  and  delivered,  and 
for  money  had  and  received.  The  case  came  before  the  Court  upon 
an  agreed  statement  of  facts. 

The  defendant  brought  a  sum  of  money  into  court  generally,  "on 
account  and  in  satisfaction  of  the  plaintiff's  damages  in  the  suit." 

The  cause  of  action  upon  which  the  count  for  goods  sold  was  found- 
ed was,  that  the  defendant  had  entered  upon  the  plaintiff's  land  and 
cut  and  carried  away  a  quantity  of  white  oak  timber.    And  the  ques- 

19  Accord:  Casey  v.  Lincoln  Nat.  Bli.  of  New  York  (lOO:;)  S3  App.  Dlv.  91, 
82  N.  Y.  Supp.  525.  See  also  Siems  v.  Pierre  Savings  Bank  (1SD5)  7  S.  D.  338. 
64  N.  W.  1G7. 

Compare  Asher  v.  Wallis  (1708)  11  Mod.  146  (briefly  stated  in  note,  pagt 
15,  supra). 


596  WAIVER  OF  TORT  (Ch.  G 

tion  was  argued  (in  writing)  whether  the  plaintiff  could  waive  the 
tort  and  sue  in  assumpsit,  it  not  appearing  that  the  timber  had  been 
sold  by  the  defendant.  Nothing  was  said  in  the  argument,  nor  at  the 
trial  in  the  court  below,  of  the  effect  of  bringing  money  into  court  in 
the  manner  above  mentioned. 

At  October  term,  1826,  the  Court  observed,  that  by  the  statement 
of  facts,  they  were  to  decide  upon  tlie  legal  effect  of  bringing  money 
.into  court  under  the  rule  in  this  case ;  and  they  suggested  whether  it 
was  not  an  admission  of  all  the  contracts  set  forth  in  the  declaration. 

Per  Curiam.  It  is  clear,  both  from  authority  and  upon  principle, 
that  the  defendant  should  have  specified  on  what  count  he  brought  in 
the  money.  But  under  the  circumstances  of  this  case  he  may  be  enti- 
tled to  relief. 

Parker,  C.  J.  The  plaintiff  declares  in  assumpsit,  and  one  count  is 
for  goods  sold  and  delivered.  By  the  agreement  it  appears,  that  the 
only  ground  for  supporting  this  count  is,  that  the  defendant  cut  and 
took  away  certain  trees  from  land  claimed  by  the  plaintiff,  and  for 
the  purpose  of  the  argument,  actually  owned  by  him.  The  proper  ac- 
tion would  undoubtedly  be  trespass  for  the  injury  to  the  land,  or  trover 
for  the  trees.  But  the  plaintiff  contends  that  he  has  a  right  to  waive 
the  tort,  and  charge  the  defendant  with  the  trees  as  sold  to  him.  Upon  ' 
examination  of  the  authorities  cited,  which  are  well  summed  up  and 
commented  upon  by  Strong,  J.,  in  the  opinion  of  the  Court  of  Common 
Pleas,  we  are  satisfied  that  the  plaintiff  cannot  maintain  this  position. 
There  is  no  contract  express  or  implied  between  the  parties,  and  there- 
fore an  action  ex  contractu  will  not  lie.  The  whole  extent  of  the 
doctrine,  as  gathered  from  the  books,  seems  to  be,  that  one  whose 
goods  have  been  taken  from  him  or  detained  unlawfully,  whereby  he 
has  a  right  to  an  action  of  trespass  or  trover,  may,  if  the  wrongdoer 
sell  -the  goods  and  receive  the  money,  wave  the  tort,  affirm  the  sale, 
and  have  an  action  for  money  had  and  received  for  the  proceeds.  No 
case  can  be  shown  where  assumpsit  as  for  goods  sold  lay  in  such  case, 
except  it  be  against  the  executor  of  the  wrongdoer,  the  tort  being  ex- 
tinguished by  the  death,  and  no  other  remedy  but  assumpsit  against  the 
executor  remaining.^"  Such  was  the  case  of  Hambly  v.  Trott,  referred 
to  in  Judge  Strong's  opinion. 

But  the  defendant  paid  money  into  court,  under  a  rule,  and  did  not 
distinguish  as  to  which  of  the  counts  the  payment  was  applicable.  And 
this,  by  the  authorities,  is  an  admission  of  the  contract  as  set  forth 
in  the  declaration.  Bennett  v.  Francis,  2  B.  &  P.  550.  It  is  however 
considered  as  within  the  discretion  of  the  Court  to  apply  this  rule  or 
not,  as  equity  shall  require ;   for  it  may  happen  that  by  mere  inadver- 

20  "Even  if  the  intestate  had  been  liable  in  tort,  we  are  not  prepared  to  as- 
sent to  the  proposition  that  an  action  of  contract  will  lie  against  an  adminis- 
trator for  a  tort  of  his  intestate,  for  which  no  action  of  contract  could  have 
been  sustained  against  hiin."  Cooper  v.  Cooper  (ISSS)  147  Mass.  370,  17  N.  E. 
892,  9  Am.  St.  Rep.  721,  page  439,  supra. 


Ch.  6)  WAIVER   OF   TORT  597 

tency  where  there  are  several  counts,  a  general  tender  is  made,  when 
it  is  intended  only  to  be  made  to  one  or  more,  but  not  to  all  the  counts. 
In  the  case  before  us  there  is  a  count  upon  a  promissory  note,  and  we 
have  been  satisfied  that  it  was  meant  that  the  money  paid  should  be 
applied  to  that  count  only,  a  litigation  in  regard  to  the  price  claimed 
for  trees,  and  the  right  of  action  in  relation  to  them,  being  always  in- 
tended. So  it  was  considered  by  the  Court  of  Common  Pleas,  who 
gave  judgment  without  any  reference  whatever  to  the  tender,  their 
attention  not  having  been  called  to  it  by  the  counsel.  We  think  there- 
fore the  defendant  ought  to  be  relieved  from  the  efifect  of  an  admis- 
sion which  is  the  technical  result  of  bringing  money  into  court  in  the 
form  used  in  this  case.    Leave  is  granted  to  amend  the  rule.^^ 

21  In  Watson  v.  Stever  (1872)  25  Mich.  386,  Cooley,  J.,  said:  "There  are  not 
wanting  decisions  wliich  support  the  rulings  of  the  circuit  judge;  but  the 
great  weight  of  authority,  as  well  as  the  tendency  of  recent  decisions,  is  the 
other  way.  If  one  has  taken  possession  of  property,  and  sold  or  disposed  of 
It,  and  received  money  or  money's  worth  therefor,  the  owner  is  not  compellable 
to  treat  him  as  a  wrong-doer,  but  may  affirm  the  sale  as  made  on  his  behalf, 
and  demand  in  this  form  of  action  the  benefit  of  the  transaction.  But  we  can 
not  safely  say  the  law  -nail  go  very  much  further  than  this  in  implying  a 
promise,  where  the  circumstances  repel  all  implication  of  a  promise  in  fact. 
Damages  for  a  trespass  are  not  in  general  recoverable  in  assumpsit;  and  in 
the  case  of  the  taking  of  personal  property,  it  is  generally  held  essential  that 
a  sale  by  the  defendant  should  be  shown." 

See,  also,  Sandeen  v.  Kansas  City,  etc.,  R.  Co.  (1883)  79  Mo.  278. 

"To  entitle  the  plaintifC  to  maintain  an  action  for  money  had  and  received, 
it  is  not  indispensiible  for  him  to  prove  that  money  actually  came  to  the  de- 
fendant's hands.  Where  property,  either  real  or  personal,  is  received  as  mon- 
ey, or  as  money's  worth,  the  plaintiff  may  elect  so  to  treat  it,  and  recover 
accordingly."  Strickland  v.  Burns  (1848)  14  Ala.  511 ;  Miller  v.  Miller  (1828) 
7  Pick.  133,  19  Am.  Dec.  264. 

A  c-onverter  who  exchanges  the  converted  chattel  for  other  property  can  not 
be  sued  in  assumpsit  where  the  rule  of  Jones  v.  Hoar  prevails.  Fuller  v. 
Duren  (1860)  36  Ala.  73.  76  Am.  Dec.  318;  Kidney  v.  Persons  (1868)  41  Vt. 
386,  98  Am.  Dec.  595. 

Bailor  v.  Bailee.— In  Bates  v.  Bigby  (1905)  123  Ga.  727,  51  S.  E.  717,  it 
is  said :  "This  court  has  held  that  where  one  wrongfully  takes  the  personalty 
of  another  and  converts  it  to  his  own  use  in  some  manner  other  than  by  a 
sale  and  receipt  of  money  therefor,  the  owner  is  restricted  to  his  right  of  action 
ex  delicto — he  cannot  waive  the  tort  and  sue  ex  contractu.  Cragg  v.  Aren- 
dale,  113  Ga.  181,  and  cit.  Where,  however,  a  contractual  relation  exists  be- 
tween the  parties,  such  as  that  of  Ijailor  and  bailee,  so  that  the  latter  rightful- 
ly obtains  possession  of  the  property,  a  tort  arising  out  of  a  breach  of  the 
bailee's  duty  imposed  by  his  relation  may  be  waived  by  the  bailor  and  assump- 
sit maintained,  the  reason  being  that  the  relation  of  the  parties  out  of  which 
the  dutv  violated  grew,  had  its  inception  in  contract.  4  Cye.  331.  .332;  Zell 
V.  Dunkie,  156  Pa.  353,  27  Atl.  38;  Tindall  v.  McCarthy,  44  S.  C.  487,  22  S.  E. 
734." 

See,  also,  B.  B.  Ford  &  Co.  v.  Atlantic  Compress  Co.  (1912)  138  Ga.  496,  75 
S.  E.  609,  Ann.  Cas.  1913D,  226. 


598  WAIVER  OF  TORT  (Ch.  6 

ABBOTT  V.   BLOSSOM. 
(Supreme  Court  of.  New  York,  General  Term,  1873.     66  Barb.  353.) 

Appeal  by  the  plaintiff  from  a  judgment  of  nonsuit  rendered  at  the 
Wayne  circuit. 

Talcott,  J.-*  One  Graham,  a  carpenter  and  joiner,  of  whose  ef- 
fects the  plaintiff  is  receiver,  entered  into  a  contract  with  the  defend- 
ant to  put  certain  repairs  on  the  defendant's  house.  Graham  was  to 
furnish  the  necessary  lumber,  and  the  defendant  was  to  draw  it  from 
the  points  where  Graham  furnished  it  to  the  place  where  the  house  was 
to  be  repaired.  There  was  no  separate  price  to  be  paid  for  the  lum- 
ber, but  the  work  and  materials,  when  the  job  was  completed,  were  to 
be  paid  for  at  a  fixed  price.  Graham  selected  the  lumber  to  be  used 
by  him  upon  the  job,  and  the  defendant  drew  it  to  the  place  where 
l.he  job  was  to  be  done.  Graham  failed  to  commence  work  upon  the 
job,  and  abandoned  the  contract,  and  the  defendant  employed  other 
parties  to  do  the  repairs,  and  used  the  said  lumber  in  making  them. 
The  plaintiff,  as  receiver  of  the  property  and  effects  of  Graham, 
brought  this  action  against  the  defendant  to  recover  the  value  of  the 
lumber  as  goods,  &c.,  sold  and  delivered.  But  two  questions  are  pre- 
sented on  the  appeal:  1.  Whether,  under  the  circumstances,  the  lum- 
ber became  the  property  of  the  defendant.  2.  Whether  the  conversion 
can  be  waived  and  this  action  maintained  as  for  goods  sold  and  de- 
livered. 

The  lumber  did  not  become  the  property  of  the  defendant.  There 
was  no  delivery  of  it  with  the  intent  to  pass  the  title.  Under  such  a 
contract  the  title  to  the  materials  prepared  by  the  builder  to  affix  to 
the  freehold  does  not  pass  until  they  are  so  affixed.  This  was  ex- 
pressly decided  in  Johnson  v.  Hunt,  11  Wend.  135.  See  also  An- 
drews v.  Durant,  11  N.  Y.  40,  62  Am.  Dec.  55;  Low  v.  Austin,  20  N. 
Y.  181. 

Some  doubt  has  been  thrown  over  the  question  whether,  in  the 
case  of  a  wrongful  conversion  of  personal  property,  the  owner  can 
waive  the  tort  and  sue  the  wrongdoer  in  assumpsit  as  for  goods  sold 
and  delivered,  where  the  wrongdoer  has  not  sold  but  retains  the  goods, 
by  the  obiter  suggestions  of  some  judges  in  this  state  and  by  some  de- 
cisions in  other  states ;  but  we  think  the  better  opinion  is,  that  he  may 
do  so,  at  all  events,  where  the  wrongdoer  has  absolutely  used  the  prop- 
erty for  his  own  benefit,  changing  its  condition  and  character.^^  *  *  * 
In  various  cases  it  has  been  decided  that  upon  a  fraudulent  purchase 
of  goods,  the  vendor  may  repudiate  the  contract  as  fraudulent  and  yet 
maintain  an  action  for  goods  sold  and  delivered,  on  the  ground  of  his 
right  to  waive  the  tortious  taking  and  bring  assumpsit  for  tlie  value. 

22  Portions  of  the  opinion  are  omitted. 

23  Tlie  court  here  discussed  the  conflicting  views  advanced  in  early  New 
York  cases. 


Ch.  6)  WAIVER   OF  TORT  599 

Kayser  v.  Sichel,  34  Barb.  84 ;  Camp  v.  Pulver,  '5  Barb.  91 ;  Roth 
V.  Palmer,  27  Barb.  aSS.^''     *     *     * 

The  principle  upon  which  this  right  to  waive  the  tort  and  sue  in  as- 
sumpsit, rests,  as  we  understand  it  is,  that  is  a  party  cannot  set  up  or 
take  advantage  of  his  own  wrong,  he  cannot  be  permitted  to  say  he  is 
not  liable  for  the  value  of  the  goods,  or  for  the  money  received  on 
the  sale  of  them,  for  the  reason  that  his  act  of  appropriation  was  a 
tort.  Of  course  an  action  for  money  had  and  received  will  not  lie, 
where  neither  money  nor  its  equivalent  has  been  received.  But  we  see 
no  reason  why  the  right  to  waive  the  tort  and  maintain  assumpsit 
should  not  be  applicable  to  the  case  where  the  defendant  has  actually 
appropriated  to  his  own  benefit  and  used  up  the  plaintiff's  goods  him- 
self, as  where  he  has  sold  them  to  anotlier  and  received  the  money, 
though  in  the  former  case  the  action  must  be  for  the  goods  as  sold 
and  delivered  and  not  for  money  had  and  received.  If  these  views 
are  correct  they  lead  to  a  reversal  of  the  judgment. 

Judgment  reversed  and  new  trial  ordered,  costs  to  abide  tlie  event.^' 

24  The  court  here  quoted  from  Gary  v.  Hotailing,  1  Hill,  311,  and  Young 
V.  Marshall,  8  Bing.  43. 

25  Accord:  T.,  W.  &  W.  R.  W.  Co.  v.  Chew  (1873)  C7  111.  378;  Braithwaite 
V.  Akin  (1S93)  8  N.  D.  305,  5G  N.  W.  133.  In  the  latter  case  it  is  said  :  "There 
is  no  allegation  in  the  answer  that  the  interveners  ever  sold  the  steamboat,  or 
in  any  manner  received  money  or  money's  worth  for  her.  But  we  are  of 
opinion  tliat  this  limitation  of  the  doctrine  that  the  tort  may  lie  waived  is 
without  foundation  in  reason  or  principle.  The  whole  doctrine  is  built  upon 
a  fiction.  It  asserts  that  what  was  done  in  defiance  of  the  owner's  rights  was 
in  law  done  with  the  most  perfect  regard  for  his  rights;  that  the  wiongdoer 
has  received  the  money  for  the  owner,  or  that  he  has  bought  the  property 
from  tlie  owner  at  its  fair  value.  This  fiction  is  indulged  only  in  the  inter- 
ests of  the  owner,  and  it  rests  upon  the  receipt  by  the  wrongdoer  of  benefits 
accruing  to  him  from  his  wrongful  acts.  Where  no  benefits  are  received,  tli(» 
liability  is  oidy  for  the  wrong.  As  this  right  in  the  injured  party  to  turu 
tlie  tort  liability  into  a  contract  liability  stands  upon  the  receipt  of  benefit! 
by  the  wrongdoer,  is  it  not  beneath  the  dignity  of  any  tribuiiiil  to  draw  a  dis- 
tinction between  the  receipt  of  benefits  in  the  shape  of  cash  and  the  receipt  of 
benefits  in  the  form  of  property'.''  In,  our  judgment,  the  fact  that  a  sale  has 
not  been  made  is  unimportant.  Not  only  upon  sound  principle,  but  also  upon 
the  foundation  of  strong  authority,  do  we  establish  the  rule  in  this  state  that 
the  owner  of  property  converted  may  waive  the  tort  and  sue  in  assum])sit  for 
the  benefits  received  whenever  the  tort  feasor  receives  benefits  of  any  kind 
from  the  wrong  connnitted,  whether  by  sale  or  by  retention  of  the  converted 
property,  or  in  any  other  manner." 

The  very  evenly  divided  authorities  on  the  question  raised  in  the  principal 
case  and  in  Jones  v.  Hoar,  page  505,  snnra.  are  collected  in  4  Cyc.  334. 

An  anomalous  doctrine  is  announced  in  I'Jvans  v.  INIiller  (1880)  58  Miss.  120, 
38  Am.  Rep.  313:  "So  long  as  the  trespasser  retains,  in  its  original  shape,  the 
property  taken,  he  may  logically  deny  that  he  holds  it  under  a  contract,  and 
demand  that  he  be  proceeded  against  in  tort,  and  that  the  tort  be  established 
against  him  ;  but  when  he  has  parted  with  it,  either  for  money  or  other  pror>- 
erty,  or  when  he  has  mingled  it  with  his  own,  consumed  it  in  its  use,  or  chang- 
ed its  form,  he  should  not  be  permitted  to  deny  the  assumption  to  pay  its 
value  which  the  law  imputes  from  his  method  of  dealiijg  witli  it." 

In  Ileinze  v.  McKinnon  (1913)  205  Fed.  300,  123  C.  C.  A.  402.  it  was  held 
that,  if  a  converter  of  plaintill's  chattels  sells  the  same,  plaintiff  camiot  sue 
for  their  value,  but  is  limited  to  the  proceeds  of  the  sale. 

Contra:    Anderson  v.  Bank  (1806)  5  N.  D.  451,  07  N.  W.  821. 


600  WAIVER  OF  TORT  (Ch.  6 

STOCKETT  V.  WATKINS. 
(Court  of  Appeals  of  Maryland,  1830.     2  Gill  &  J.  326,  20  Am.  Dec.  438.)' 

Error  to  Anne  Arundel  County  Court. 

Joseph  N.  Stockett  was  for  a  number  of  years  in  unlawful  posses- 
sion of  certain  negro  slaves  to  which  Nicholas  Watkins,  the  plaintiff's 
intestate,  was  rightfully  entitled.  Stockett  finally  surrendered  up  the 
slaves  upon  an  adjudication  of  the  title  in  favor  of  Watkins.  The 
present  action  of  assumpsit  was  then  brought  by  Watkins  and  upon 
his  death  continued  by  his  administrators,  the  present  plaintiffs,  against 
Stockett,  to  recover  (among  other  things)  for  the  labor  and  services 
of  such  negroes  during  the  time  that  they  were  in  the  possession  of 
Stockett.  From  a  verdict  in  favor  of  plaintiffs,  the  defendant  brought 
a  writ  of  error. 

Earle,  J.^**  The  two  other  prayers  on  behalf  of  the  plaintiffs,  as 
well  as  the  last  offered  by  the  defendant,  refer  to  the  negro  property, 
and  will  be  disposed  of  by  us  in  a  few  words.  They  rest  upon  differ- 
ent principles,  and  we  entirely  concur,  with  the  Court,  that  the  action 
as  to  the  work  and  labor  of  the  servants  may  be  sustained.  Supposing 
Joseph  N.  Stockett  to  have  possessed  them  as  a  trespasser  from  the 
first  to  the  last  of  the  tedious  law  suit,  between  him  and  Nicholas  Wat- 
kins, the  tort  may  be  waived,  and  the  action  of  assumpsit  supported. 
This  right  to  waive  the  direct  injury,  and  adopt  assumpsit,  is  universal, 
where  the  chattel  taken,  has  been  turned  into  money.  And  it  has  been 
sustained  in  some  instances,  where  the  chattel  has  not  been  parted 
from  by  the  trespasser.  For  the  distinctions  on  this  subject,  vide 
Hambly  v.  Trott,  Cowp.  375.  The  present  case  however  differs  in 
its  facts  from  most  of  the  cases  decided  on  this  head.  The  negroes 
have  been  restored  to  Nicholas  Watkins,  and  the  claim  is  for  damages 
for  the  tort,  committed  by  the  trespasser  in  seising  them,  and  detain- 
ing them  from  the  owner.  That  this  kind  of  tort  may  also  be  waived, 
and  an  action  substituted  for  it,  on  the  implied  contract,  is  fully  estab- 
lished by  the  modern  authorities,  and  is  in  fact  in  principle  like  the  old 
cases  reported  on  this  doctrine.  Lightly  v.  Coulston,  1  Taunt.  112,  and 
Foster  v.  Stewart,  3  Maul.  &  Selw.  197,  may  be  consulted,  and  they 
will  be  found  decisive  on  the  point.  The  last  was  the  case  of  an  ap- 
prentice, seduced  from  the  service  of  his  master,  where  the  seduction 
was  waived,  and  an  assumpsit  for  the  work  and  labor  of  the  appren- 
tice, supported  by  Ld.  Ellenborough,  and  the  whole  Court.     *     *     * 

Judgment  reversed  and  procedendo  awarded. ^^ 

28  The  facts  have  been  rewritten,  and  some  of  the  facts  and  portions  of  the 
opinion  involving  other  questions  discussed  by  the  coui't  are  omitted. 

27  Accord:  Janes  v-  Buzzard  (Arkansas  Territory,  1834)  Hempst.  240,  Fed, 
Cas.  No.  7,206a. 

Contra:  Crow  v.  Boyd's  Administrators  (1849)  17  Ala.  51  (relying  on  the 
rule  of  Jones  v.  Hoar,  page  595,  supra). 

In  Nordeu  v.  Jones  (1873)  33  Wis.  600,  14  Am.  Rep.  782,  an  action  on  book 


Ch.  6)  WAIVER  OF  TORT  ,  601 

BECHTEL  V.  CHASE. 

(Supreme  Court  of  California,  1909.     156  Cal.  707,  106  Pac.  SI.) 

Department  1.  Appeal  from  an  order  of  the  Superior  Court,  Riv- 
erside County,  refusing  a  new  trial ;   B,  F.  Bledsoe,  Judge. 

Sloss,  J.^^  This  action  was  brought  against  the  administrator  with 
the  will  annexed  of  the  estate  of  Charles  D.  Foster,  deceased  to  recover 
from  said  estate  the  sum  of  $7,550,  principal,  and  interest  thereon 
from  January  1,  1904,  at  the  rate  of  6  per  cent,  per  annum.     *     *     * 

As  will  be  seen  from  the  above  statement  of  the  pleadings,  the  ac- 
tion is,  as  to  each  count  of  the  complaint,  one  to  recover  the  purchase 
price  of  personal  property  alleged  to  have  been  sold  for  a  stated  price 
and  delivered.  The  actual  transaction  between  the  parties  was,  how- 
ever, something  very  different  from  such  sale.     Taking  the  evidence 

account,  the  defendant  filed  a  counterclaim  and  on  the  trial  offered  to  prove 
an  item  in  his  account  of  ?6  for  pasturing  plaintiff's  cattle,  and  testified  that 
plaintiff  laid  down  his  fence  and  let  the  cattle  into  the  pasture.  This  item 
was  rejected  in  the  justice  court  but  was  allowed  upon  appeal  to  the  circuit 
court.  Dixon,  C.  J.,  said :  "The  question  presented  on  the  rejection  of  the  $6 
item  is  an  interesting  one,  upon  which  there  exists  considerable  contrariety 
of  opinion  and  decision,  both  in  England  and  this  countrj'.  It  was  a  charge 
of  that  sum  made  by  the  defendant  against  the  plaintiff  for  pasturing  the 
plaintiff's  cattle,  which  the  defendant  testified  the  plaintiff  had  let  into  his. 
the  defendant's,  field,  by  laying  down  defendant's  fence  for  that  purpose.  The 
objection  sustained  by  the  justice  was,  that  the  laying  down  of  the  fence  and 
turning  in  of  the  cattle  was  a  trespass  on  the  part  of  the  plaintiff,  which  could 
not  be  brought  in  or  proved  as  a  set-off  or  cross-demand  in  this  form  of  action, 
but  that  the  defendant  must  resort  to  his  action  of  trespass  against  the  plain- 
tiff to  recover  the  damages  which  he  has  sustained.  It  is  not  to  be  denied 
that  there  are  numerous  decisions  of  most  respectable  courts  sustaining  this 
view,  while  on  the  other  hand  there  is  an  equal  weight  of  most  respectable 
authority  also  for  holding  that  a  promise  to  pay  will  be  implied  under  such 
circumstances,  upon  which  an  action  of  assumpsit  may  likewise  be  maintain- 
ed. The  question  being  new  in  this  court  under  our  present  statutes,  we  are 
at  liberty  to  adopt  such  rule  as  in  our  judgment  will  best  subserve  the  ends  of 
justice,  which  is  or  ought  to  be  the  object  of  all  rules  laid  down  in  the  course 
of  judicial  proceedings.  *  ♦  *  The  underlying  question  in  all  the  cases 
obviously  is,  When  and  under  what  circumstances  will  the  law  imply  a  prom- 
ise on  tiie  part  of  the  defendant  to  pay?  'It  is  a  principle  well  settled,'  say 
the  court,  in  Webster  v.  Drink  water,  5  Greenl.  (Me.)  322,  17  Am.  Dec. 
238,  'that  a  promise  is  not  implied  against  or  without  the  consent  of  the  per- 
son attempted  to  be  charged  by  it.  And  where  one  is  implied,  it  is  because 
the  party  intended  it  should  be,  or  because  natural  justice  plainly  requires  it. 
In  consideration  of  some  benefit  received.'  Tested  by  the  latter  as  the  govern- 
ing principle  upon  which  the  law  raises  a  promise  to  pay,  it  is  very  obvious 
that  the  more  liberal  rule  is  the  correct  one,  and  that  which  should  prevail." 
In  Fanson  v.  I.insley  (1878)  20  Kan.  235,  recovery  was  allowed  by  way  of 
set-off  for  the  value  of  the  wrongful  use  of  a  threshing  machine. 

The  right  of  a  holder  of  a  patent  to  recover  for  the  profits  received  by  an 
Infringer  of  the  patent  is  analogous  to  the  doctrine  announced  in  the  principal 
case.     Head  v.  Porter  (C.  C.  1S95)  70  Fed.  498. 

By  act  of  Congress  in  1910  (Act  June  25,  1910,  36  Stat.  851,  c.  42.3)  the 

jurisdiction  of  the  Court  of  Claims  was  enlarged  to  include  cases  involving 

the  unauthorized  use  of  a  patented  invention  by  an  officer  of  the  United  States. 

See  Crozier  v.  Krapp  (1911)  224  U.  S.  290,  32  Sup.  Ct.  488,  56  L.  Ed.  771.    See, 

also,  note,  page  44,  supra. 
2  8  The  court's  statement  of  the  pleadings  is  omitted  and  a  portion  of  the 

(pinion,  discussing  a  point  of  pleading,  is  omitted. 


602  WAIVER   OF   TORT  (Ch.  G 

in  the  light  most  favorable  to  the  appellant's  claim,  it  may  be  said  to 
have  disclosed  substantially  the  following  state  of  facts:  The  North- 
ern Investment  Company  was  a  corporation  organized  under  the  laws 
of  Kentucky.  It  had  executed  certain  promissory  notes,  some  of 
which  were  owned  and  held  by  the  plaintiff  and  one  Grubb;  plaintiff's 
interest  in  said  notes  being  ^^^/sie.  The  Northern  Investment  Com- 
pany became  involved  in  financial  difficulties,  and  Foster,  who  was 
its  president,  undertook  a  scheme  of  reorganization.  A  new  corpora- 
tion, the  Mercantile  Realty  Company,  was  to  be  formed  to  take  over 
the  property  of  the  Northern  Investment  Company.  Holders  of  notes 
of  the  Northern  Investment  Company  were  requested  to  surrender 
their  notes  and  take  in  exchange  therefor  preferred  stock  of  the  Mer- 
cantile Realty  Company  at  par.  Letters  urging  the  plaintiff  to  sur- 
render his  notes  and  accept  stock  of  the  Mercantile  Realty  Company 
upon  this  basis  were  written  by  Foster,  and  plaintiff  finally  consented 
to  make  the  exchange.  He  surrendered  his  Northern  Investment 
Company  notes  to  Foster  and  received  in  exchange  preferred  stock 
of  the  Mercantile  Realty  Company  of  the  par  value  of  $7,550,  to- 
gether with  $6.68  in  cash  ;  the  total,  $7,556.68,  representing  the  amount 
then  due  on  plaintiff's  interest  in  the  notes.  We  may  assume  for  the 
purposes  of  this  discussion  that  the  evidence  supports  the  plaintiff's 
contentions  that  the  agreement  in  question  was  made  by  Foster  per- 
sonally and  not  on  behalf  of  the  Mercantile  Realty  Company;  that 
Foster  falsely  and  fraudulently  represented  to  plaintiff  that  the  pre- 
ferred stock  of  the  Mercantile  Realty  Company  was  worth  its  par 
value ;  and  that  the  plaintiff  believed  these  fraudulent  representations 
and  entered  into  the  agreement  in  reliance  upon  them;  and,  further, 
that  the  said  stock  was  in  fact  worthless. 

So  assummg,  it  may  be  conceded  that  plaintiff  had  a  right  of  ac- 
tion against  Foster  for  any  damage  sustained  by  reason  of  the  fraud 
practiced  upon  him.  But  we  are  entirely  unable  to  see  how  the  circum- 
stances above  detailed  could  be  held  to  constitute  a  sale  by  Bechtel  to 
Foster  of  the  notes  of  the  Northern  Investment  Company  for  $7,550. 
The  transaction  was  not  a  sale  of  the  notes  for  an  agreed  price,  but 
was  one  whereby  the  notes  were  transferred  in  consideration  of  the 
issue  to  plaintiff  of  preferred  stock  in  the  corporation.  The  plaintiff 
might  proceed  in  any  one  of  various  ways  to  seek  relief  for  the  fraud 
practiced  upon  him  in  inducing  him  to  exchange  his  notes  for  worth- 
less stock.  He  might  rescind  the  transaction  and  recover  the  notes 
which  he  had  been  induced  to  turn  over;  he  might  perhaps,  treating 
the  transfer  of  the  notes  as  void,  recover  them  or  their  value  without 
rescission.  Wendling  Lumber  Co.  v.  Glenwood  Lumber  Co.,  153  Cal. 
411,  95  Pac.  1030.  He  might  bring  an  action  for  the  deceit  practiced 
upon  him  and  recover  such  damage  as  he  could  show  to  have  been  suf- 
fered by  him.  In  such  last-mentioned  action  the  measure  of  recovery 
might  be  the  same  as  that  here  sought,  i.  e.,  the  value  which  the  pre- 


Ch.  6)  WAIVER   OF  TORT  603 

ferred  stock  would  have  had  if  the  false  representations  made  with 
regard  to  it  had  been  true.  Cruess  v.  Fessler,  39  Cal.  336;  Spreckels 
V.  Gorrill,  152  Cal.  383,  92  Pac.  1011.  But  on  no  possible  theory  can 
it  be  said  that  the  fact  that  an  exchange  of  property  was  induced  by 
a  fraud  would  amount  to  proof  that  the  property  surrendered  was 
sold  to  the  wrongdoer  for  an  agreed  sum  of  money. 

The  plaintiff  seeks  to  bring  the  case  within  the  rule  that,  where  per- 
sonal property  is  wrongfully  converted,  the  injured  party  may  "waive 
the  tort  and  sue  in  assumpsit."  In  many  jurisdictions  this  doctrine  is 
limited  to  cases  where  the  wrongdoer  has  sold  the  property  or  other- 
wise converted  it  into  money,  in  which  event  the  plaintiff  may  main- 
tain an  action  for  the  proceeds.  4  Cyc.  332.  In  this  state,  however, 
as  in  a  number  of  others,  a  broader  rule  enables  one  whose  goods  are 
wrongfully  taken  and  used  by  another  to  sue  in  assumpsit  for  their 
value  as  for  goods  sold  and  delivered.  Roberts  v.  Evans,  43  Cal.  380; 
Lehmann  v.  Schmidt,  87  Cal.  15,  25  Pac.  161;  Chittenden  v.  Pratt, 
89  Cal.  178,  26  Pac.  626.  But  the  application  of  this  rule,  even  in  its 
more  liberal  form,  cannot  be  extended  to  a  case  where  plaintiff  has 
voluntarily  parted  with  his  property  in  exchange  for  something  re- 
ceived by  him  in  return.  The  very  basis  of  the  "waiver  of  tort"  is 
that  plaintiff  consents  to  the  taking  of  his  property  and  affirms  the 
act  of  the  wrongdoer.  He  treats  it  as  a  sale,  and  recovers  the  value, 
due  him  under  an  implied  contract  of  sale.  But  where  he  has  actually 
agreed  to  an  exchange,  which  is  executed,  his  affirmance  of  the  trans- 
action is  an  affirmance  of  it  as  a  whole.  Having  parted  with  his  prop- 
erty for  an  agreed  consideration,  he  cannot,  while  relying  upon  his 
transfer  as  one  made  pursuant  to  contract,  hold  the  defendant  to  the 
payment  of  any  other  consideration  than  the  one  agreed  upon.  No 
contract  will  be  implied  by  the  law  as  against  an  express  contract  not 
disavowed  by  either  party.  So  long  as  plaintiff  treats  the  transfer  of 
the  notes  to  Foster  ds  valid,  his  only  remedy  for  the  fraud  alleged  by 
him   is   by  means  of   an  action   in   tort  to   recover  damages   there- 

+  y-\  •■  ^  rfi  ^ 

The  order  denying  a  new  trial  is  affirmed. 


FERGUSON  V.  CARRINGTOK 

(Court  of  King's  Bench;  1829.     9  Barn.  &  C.  59.) 

Assumpsit  for  goods  sold  and  delivered.  Plea,  general  issue.  At 
the  trial  before  Lord  Tenterden,  C.  J.,  at  the  London  sittings  after 
last  term,  it  appeared  that  the  plaintiffs,  between  the  29th  of  March 
and  the  12th  of  May  1828,  sold  to  the  defendant  various  quantities 
of  goods,  amounting  in  the  whole  to  £282.,  which,  by  the  contract  of 
sale,  were  to  be  paid  for  by  bills  accepted  by  the  defendant;  and 
that  such  acceptances  were  given,  but  had  not  become  due  at  the  time 


604  WAIVER  OP  TORT  (Ch.  6 

when  the  action  was  commenced.  It  appeared  further,  that  the  de- 
fendant immediately  after  receiving  the  goods,  sold  them  at  reduced 
prices  to  other  persons.  It  was  contended,  under  these  circumstances, 
that  it  was  manifest  that  the  defendant  purchased  the  goods  with  the 
preconceived  design  of  not  paying  for  them ;  and  that,  as  he  had  sold 
them,  the  plaintiffs  might  maintain  an  action  to  recover  the  value 
though  the  bills  were  not  due.  Lord  Tenterden,  C.  J.,  was  of  opin- 
ion, that  if  the  defendant  had  obtained  the  goods  with  a  preconceived 
design  of  not  paying  for  them,  no  property  passed  to  him  by  the  con- 
tract of  sale,  and  that  it  was  competent  to  the  plaintiffs  to  have 
brought  trover,  and  to  have  treated  the  contract  as  a  nullity,  and  to 
have  considered  the  defendant  not  as  a  purchaser  of  the  goods,  but 
as  a  person  who  had  tortiously  got  possession  of  them;  but  that  the 
plaintiffs  by  bringing  assumpsit  had  affirmed  that,  at  the  time  of  the 
action  brought,  there  was  a  contract  existing  between  them  and  the 
defendant.  The  only  contract  proved,  was  a  sale  of  goods  on 
credit.  The  time  of  credit  had  not  expired,  and  consequently  the 
action  was  brought  too  soon. 

F.  Pollock  now  moved  for  a  new  trial,  and  contended,  that  the 
plaintiffs  might  sue  for  the  price  of  the  goods  without  waiting  until 
the  expiration  of  the  credit  given ;  that  credit  having  been  obtained 
in  pursuance  of  a  fraudulent  design  to  cheat  the  plaintiffs. 

BaylDy,  J.  The  plaintiffs  have  affirmed  the  contract  by  bringing 
this  action.  The  contract  proved  was  a  sale  on  credit,  and  where 
there  is  an  express  contract,  the  law  will  not  imply  one. 

LiTTLEDALE,  J.  At  the  time  when  this  action  was  brought,  the  de- 
fendant was  not  bound  by  the  contract  between  him  and  the  plaintiffs 
to  pay  for  the  goods.  The  plaintiffs  claim  to  recover  for  breach  of  the 
contract. 

Parke,  J.  As  long  as  the  contract  existed,  the  plaintiffs  were  bound 
to  sue  on  that  contract.  They  might  have  treated  that  contract  as 
void  on  the  ground  of  fraud,  and  brought  trover.  By  bringing  this 
action,  they  affirm  the  contract  made  between  them  and  the  defend- 
ant. 

Rule  refused.^* 

28  Accord:  Hosan  v.  Shee  (1797)  2  Esp.  522;  Kellogg  v.  Turple  (1870)  93 
111.  2G5,  34  Am.  Rep.  1C3 ;  Emerson  v.  Detroit  Spring  Ck).  (1894)  100  Mich.  127, 
58  N.  W.  659. 


Ch.  6)  WAIVER   OF  TORT  605 

CROWN  CYCLE  CO.  v.  BROWN. 

(Supreme  Court  of  Oregon,  1901.     39  Or.  285,  64  Pac.  451.) 

Appeal  from  circuit  court,  Multnomah  county;  Alfred  F.  Sears, 
Judge. 

Action  by  Crown  Cycle  Company  against  Sherman  D.  Brown  to  re- 
cover the  value  of  goods  sold  and  delivered  to  defendant.  From  a 
judgment  in  favor  of  plaintiff,  defendant  appeals. 

WoLVERTON,  J.  The  amended  complaint  herein,  omitting  formal 
allegations,  runs  as  follows :  "That  on  or  about  the  1st  day  of  March, 
1896,  the  plaintiff,  at  the  special  instance  and  request  of  the  defendant, 
sold  and  delivered  to  defendant  certain  goods,  wares,  and  merchandise, 
of  the  reasonable  value  of  $12,234."  The  answer  denies  that  the  plain- 
tiff sold  or  delivered  to  the  defendant  any  goods,  wares,  or  merchandise 
whatever,  except  under  a  special  contract  of  purchase  and  sale  between 
them,  which  provided  for  the  payment  of  a  stipulated  price  at  a  time 
certain,  which  had  not  elapsed  at  the  commencement  of  the  action.  It 
is  further  alleged  that  the  goods,  wares,  and  merchandise  mentioned  in 
the  complaint  consist  of  three  lots  of  bicycles,  which  were  purchased  by 
the  defendant  from  the  plaintiff  under  a  special  contract  as  to  price, 
terms,  and  time  of  payment;  and  that,  in  pursuance  of  the  terms  of  the 
contract,  the  defendant  executed  and  delivered  to  the  plaintiff,  as  and 
for  the  whole  of  the  purchase  price  of  said  bicycles,  certain  bills  of 
exchange,  which  were  received  and  accepted  by  plaintiff,  and  are  still 
held  and  retained  by  it.  The  plaintiff  replied  that  the  goods  were  pro- 
cured and  said  contract  was  induced  through  the  fraudulent  and  de- 
ceitful representations  of  the  defendant  as  to  the  condition  of  his  cred- 
it ;  that  the  said  bills  of  exchange  were  taken  and  accepted  under  those 
conditions,  and  are  wholly  worthless.  There  was  a  demurrer  inter- 
posed to  the  reply,  and  a  motion  to  strike  out  the  affirmative  averment, 
which  were  both  overruled.  The  verdict  and  judgment  being  in  favor 
of  the  plaintiff,  the  defendant  appeals. 

The  complaint  is  criticised  as  not  stating  a  cause  of  action,  but  it  is 
deemed  sufficient,  especially  as  the  criticism  comes  after  verdict.  Nico- 
lai  V.  Krimbel,  29  Or.  76,  84,  43  Pac.  865. 

The  defendant  next  urges  that  the  reply  constitutes  a  departure  from 
the  ground  taken  in  plaintiff's  first  pleading.  The  complaint  is  in  as- 
sumpsit for  goods  sold  and  delivered  on  a  quantum  valebat.  The  an- 
swer pleads,  in  avoidance  of  that  form  of  action,  a  specific  contract, 
and  that  the  time  for  which  credit  was  accorded  under  it  had  not  ex- 
pired. The  purpose  of  the  reply  is  to  show  that  the  special  contract 
was  a  nullity,  because  induced  by  fraud,  and  that  the  defendant,  by 
reason  thereof,  was  not  entitled  to  the  credit  given  him,  and  thus  to 
overcome  or  avoid  the  defense  relied  upon.  This  does  not  state  a  new 
cause  of  action.  True,  the  plaintiff  might  have  anticipated  the  defense 
interposed,  and  stated  the  fraud  attending  the  transaction  in  his  com- 


606  '  WAIVER   OF   TORT  (Ch.  6 

plaint,  but  the  more  logical  method  was  adopted,  to  simply  state  its 
cause  of  action  on  an  implied  contract,  and  await  the  movement  of  its 
adversary,  and,  when  the  specific  contract  was  interposed,  then  to  show 
that,  by  reason  of  the  fraud  practiced  in  its  procurement,  it  was  inef- 
fectual for  the  purpose  designed  by  the  pleader.  The  reply  does  not 
quit  or  depart  from  the  complaint,  and  state  a  different  cause,  nor  is 
anything  it  contains  inconsistent  with  the  cause  there  stated.  The  de- 
fendant seeks  to  destroy  the  plaintiff's  right  of  action  by  setting  up 
this  specific  contract,  and  the  reply  avoids  it,  and  thus  is  put  upon  the 
record  a  perfectly  logical  procedure.  The  reply  may  be  said  to  fortify 
the  cause,  but  it  goes  no  further^  and  cannot  be  termed  a  departure. 
Mayes  v.  Stephens,  38  Or.  512,  63  Pac.  760,  64  Pac.  319;  Cederson  v. 
Navigation  Co.,  38  Or.  343,  62  Pac.  637,  63  Pac.  763 ;  Rosby  v.  Rail- 
way Co.,  Z7  Minn.  171,  33  N.  W.  698;  Shillito  Co.  v.  McClung  (C.  C.) 
45  Fed.  778;  Insurance  Co.  v.  Nexsen,  84  Ind.  347,  43  Am.  Rep.  91; 
Ankeny  v.  Clark,  148  U.  S,  345,  13  Sup.  Ct.  617,  Z7  L.  Ed.  475. 

The  most  important  question  attending  this  controversy  is  whether 
the  plaintiff  can  waive  the  tort  and  sue  in  assumpsit  for  goods  sold  on  a 
quantum  valebat.  Upon  this  question  the  authorities  are  in  hopeless 
conflict,  and  we  will  make  no  attempt  to  reconcile  or  distinguish  them. 
The  action  is  for  the  reasonable  value  of  the  bicycles  not  for  an  agreed 
price,  so  that  there  is  no  attempt  to  sue  upon  the  contract,  which  it  is 
alleged  was  fraudulently  obtained,  or  to  adopt  any  of  its  terms  as  con- 
trolling in  any  particular  or  binding  upon  the  parties  to  the  action. 
Fraud  having  vitiated  the  contract,  and  rendered  it  voidable,  at  the 
election  of  the  plaintiff,  it  had  proceeded  by  an  action  in  no  wise  adapt- 
ed to  its  enforcement,  and  thereby  it  would  seem  to  logically  follow 
that  it  has  proceeded  in  its  disaffirmance.  At  any  rate,  the  action  which 
it  has  employed,  is  wholly  inconsistent  with  the  existence  of  the  specific 
contract,  so  that  it  cannot  be  said  that  by  suing  in  assumpsit  it  has  af- 
firmed any  contract  that  it  may  have  had  with  the  defendant,  except 
the  one  which  may  be  implied  from  the  acts  of  the  parties. 

In  a  leading  case  upon  the  subject  (Roth  v.  Palmer,  27  Barb.  [N.  Y.] 
652,  656),  Hogeboom,  J.,  discussing  the  effect  of  the  waiver  of  the  tort, 
says :  "Does  it  restore  the  express  contract  which  has  been  repudiated 
for  the  fraud,  or  does  it  leave  the  parties  in  the  same  condition  as  if  no 
express  contract  had  been  made,  to  such  relations  as  result,  by  impli- 
cation of  law,  from  the  delivery  of  the  goods  by  the  plaintiff's  and  their 
possession  by  the  defendant?  On  this  subject  the  decisions  are  con- 
flicting, but  I  think  the  weight  of  authority,  as  well  as  the  true  and 
logical  effect  of  the  various  acts  of  the  parties,  is  to  leave  the  parties  to 
stand  upon  the  rights  and  obligations  resulting  from  a  delivery  and 
the  possession  of  the  goods."  The  proposition  is  supported  by  Wilson 
V.  Force,  6  Johns.  (N.  Y.)  110,  5  Am.  Dec.  195;  Pierce  v.  Drake,  15 
Johns.  (N.  Y.)  475,  and  other  New  York  authorities,  as  well  as  by 
Dietz's  Assignee  v.  Sutcliffe,  80  Ky.  650, — a  case  in  all  particulars  like 
the  one  at  bar.     To  the  same  purpose,  see  Pom.  Code  Rem.  (3d  Ed.) 


Ch,  6)  WAIVER   OP  TORT  607 

§  5'71 ;  Bliss,  Code  PI.  (3d  Ed.)  §  15,  Whether  the  vendor  may  waive 
the  tort  until  his  artful  vendee  has  disposed  of  the  goods  and  con- 
verted them  into  money  is  another  phase  of  the  question,  touching 
which  the  authorities  are  not  agreed.  There  are  many  of  great  weight 
holding  that  he  can.  Galvin  v.  Milling  Co.,  14  Mont.  508,  Zl  Pac.  366 ; 
Lehmann  v.  Schmidt,  87  Cal.  15,  25  Pac.  161 ;  Roberts  v.  Evans,  43 
Cal.  380;  Norden  v.  Jones,  ZZ  Wis.  600,  14  Am.  Rep.  782;  Assurance 
Co.  V.  Towle,  65  Wis.  247,  26  N.  W.  104 ;  Downs  v.  Finnegan,  58  Minn. 
112,  59  N.  W.  981,  49  Am.  St.  Rep.  488;  Gordon  v.  Bruner,  49  Mo. 
570;  McCombs  v.  Church  &  Co.,  9  Lea  (Tenn.)  81 ;  Terry  v.  Munger, 
121  N.  Y.  161,  24  N.  E.  272,  8  L.  R.  A.  216,  18  Am.  St.  Rep.  803 ;  and 
Challiss  V.  Wylie,  35  Kan.  506,  11  Pac.  438. 

We  are  inclined  to  adopt  the  doctrine  of  the  foregoing  authorities 
as  establishing  the  better  rule,  namely,  that  a  vendor  who  has  been 
induced  by  fraud  to  part  with  his  goods  to  a  purchaser  on  a  time 
consideration  may,  before  the  same  becomes  due,  sue  in  assumpsit  for 
their  reasonable  value,  and  this  before  the  vendee  has  converted  the 
same  into  money.  We  may  say  that  we  are  impelled  somewhat  to  this 
conclusion  by  a  cause  of  some  analogy  heretofore  decided  by  this  court. 
We  refer  to  Gove  v.  Milling  Co.,  19  Or.  363,  24  Pac.  521,  -wherein  it 
was  held  that  "when  one  performs  services  for  another  on  a  special 
contract,  and,  for  any  reason  except  a  voluntary  abandonment,  fails  to 
fully  comply  with  his  contract,  and  the  services  and  material  have 
been  of  value  to  him  for  whom  they  were  rendered  and  furnished,  he 
may  recover  for  such  material  and  services  their  reasonable  value,  after 
deducting  therefrom  any  damages  tlie  party  for  whom  such  materials 
were  furnished  and  services  were  rendered  has  sustained  by  reason 
of  such  failure."    The  quotation  is  from  the  headnote. 

There  was  no  attempt  on  the  part  of  the  plaintiff,  prior  to  the  in- 
stitution of  the  action,  to  formally  rescind  the  contract,  nor  was  there 
any  offer  to  return  or  to  surrender  the  acceptances  received  in  consid- 
eration of  the  sale,  but  the  plaintiff  proffered  to  return  them  in  its  re- 
ply and  at  the  trial.  As  against  the  right  of  recovery  by  this  method, 
it  is  urged  that  no  action  accrued  to  the  plaintiff  for  the  reasonable 
value  of  the  goods  until  the  specific  contract  was  rescinded,  and  there 
was  an  offer  to  return  the  acceptances,  and  that  the  present  action  was 
prematurely  brought,  to  say  the  least.  There  is  ample  authority,  how- 
ever, for  proceeding  by  the  method  adopted.  Ryan  v.  Brant,  42  lil. 
78 ;  Nichols  v.  Michael,  23  N.  Y.  264,  80  Am.  Dec.  259 ;  Wigand  v.  Si- 
chel,  ZZ  How.  Prac.  (N.  Y.)  174;  Claflin  v.  Taussig,  7  Hun  (N.  Y.)  223. 
The  authorities  seem  to  be  uniform  that,  where  the  action  is  for  the 
recovery  of  specific  property,  the  tender  of  return  of  such  acceptances 
should  be  made  as  a  condition  precedent  to  the  bringing  of  the  action, 
as  the  vendee  must  be  placed  in  statu  quo  before  the  vendor  is  entitled 
to  take  it  from  him,  consequently  he  has  no  right  of  action  until  the 
tender  is  made;    but  there  is  a  distinction  recognized  by  these  same 


608  WAIVER  OF  TORT  (Ch.  6 

authorities,  that  where  the  party  proceeds  in  trespass,  or  on  a  quantum 
valebat,  the  rule  does  not  apply.  Doane  v.  Lockwood,  115  111.  490,  4 
N.  E.  500. 

These  considerations  affirm  the  judgment  of  the  court  below;   and 
it  is  so  ordered. 


HURLEY  V.  LAMOREAUX. 

(Supreme  Court  of  Minnesota,  1882.     29  Minn.  138,  12  N.  W.  447.) 

Appeal  by  defendants  from  an  order  of  the  district  court  for  Henne- 
pin county,  Young,  J,,  presiding,  overruling  their  demurrer  to  the  com- 
plaint. 

Berry,  J.  The  complaint  is  that  on  May  1,  1881,  the  plaintiff  "was, 
and  ever  since  has  been  and  now  is,  the  owner  in  fee-simple"  of  certain 
described  premises;  that  defendants  have  used  and  occupied  the  same 
from  said  first  day  of  May ;  and  "that  said  use  and  occupation  of  said 
premises  for  said  time  was  and  is  reasonably  worth  the  sum  of  $800." 
For  this  sum  judgment  is  demanded. 

This  action  is  in  the  nature  of  assumpsit  for  use  and  occupation.  It 
lies  only  where  the  relation  of  landlord  and  tenant  subsists  between 
the  parties  founded  on  agreement,  express  or  implied.  Taylor,  Land- 
lord &  Tenant,  §  636;  Abbott,  Tr.  Ev.  351;  Carpenter  v.  U.  S.,  17 
Wall.  489,  21  L.  Ed.  680;  City  of  Boston  v.  Binney,  11  Pick.  (Mass.) 
1,  22  Am.  Dec.  353;  Mayo  v.  Fletcher,  14  Pick.  (Mass.)  525;  Acker- 
man  V.  Lyman,  20  Wis.  454;  Holmes  v.  Williams,  16  Minn.  164.  As 
the  complaint  contains  no  allegations  of  any  facts  showing  that  the  re- 
lation of  landlord  and  tenant  subsisted  between  the  plaintiff  and  de- 
fendant at  the  time  of  the  alleged  use  and  occupation,  or  any  part 
thereof,  it  fails  to  state  a  cause  of  action,  and  defendants'  demurrer 
was  therefore  well  taken.  The  plaintiff'  appears  to  claim  that  he  has 
framed  his  complaint  upon  the  theory  o>f  waiving  a  tortious  entry  and 
occupation  of  the  premises  by  defendant,  and  suing  upon  an  implied 
contract  to  pay  for  use  and  occupation.  One  obstacle  in  the  way  of 
this  claim  is  that  no  tortious  entry  or  occupation  is  in  any  way  alleged. 
But  the  insuperable  answer  to  it  is  found  in  the  authorities  above  cited, 
which  hold  in  effect  that  a  trespasser  cannot  be  converted  into  a  tenant 
without  his  consent.  In  other  words,  to  maintain  an  action  for  use  and 
occupation,  there  must  have  been  an  agreement,  express  or  implied,  by 
which  the  relation  of  landlord  and  tenant  is  created  between  the  parties. 
Privity  of  contract  between  them  is  indispensable. 

Order  overruling  demurrer  reversed. ^"^ 

30  The  historical  reason  for  this  rule  is  explained  in  an  article  by  the  late 
Dean  Ames  in  2  Harvard  Law  Review,  377,  reprinted  in  3  Select  Essays  in 
Anglo-American  Legal  History,  299. 

The  rule  is  criticized  in  an  article  in  23  Central  Law  Journal  387  (1887). 


Ch.  6)  WAIVER  OF  TORT  609 


PARKS  V.  MORRIS,  LAYFIELD  &  CO. 

(Supreme  Court  of  Appeals  of  West  Virginia,  3907,    63  W.  Va.  51,  59 

S.  E.  753.) 

Error  to  Circuit  Court,  Ritchie  County. 

Action  by  W.  H.  Parks  against  Morris,  Layfield  &  Co.  Judgment 
for  plaintiff-.    Defendants  bring  error. 

Brannon,  J.»^  W.  H.  Parks  brought  an  action  of  assumpsit  in 
the  circuit  court  of  Ritchie  county  against  Morris,  Layfield  &  Co.,  and 
recovered  a  verdict  and  judgment,  and  the  defendants  bring  the  case 
to  this  court.     *     ♦     * 

Parks'  demand  is  for  timber  cut  upon  land  claimed  by  him  and  also 
claimed  adversely  to  him  by  Simon  Sterne.  Morris,  Layfield  &  Co. 
received  a  deed  from  Sterne  conveying  the  timber  and  cut  the  timber 
from  the  land.  Parks  claims  that  Morris,  Layfield  &  Co.  made  a  con- 
tract with  him  for  the  conditional  purchase  of  the  timber.  Parks  ex- 
hibited a  deed  to  him  from  one  H.  H.  Bennett  for  the  land.  Sterne 
brought  an  action  of  ejectment  years  ago  against  Parks  on  account  of 
the  latter's  claim  to  the  land.  Sterne  claimed  the  land  under  a  sale  and 
deed  made  by  the  commissioner  of  forfeited  and  delinquent  lands  in 
1846,  under  an  old  title  emanating  from  the  commonwealth  of  Virginia 
in  1797,  and,  claiming  that  in  the  conveyance  to  him  from  the  commis- 
sioner of  forfeited  and  delinquent  lands  there  had  occurred  a  mistake 
in  boundary,  so  that  the  conveyance  ought  to  have  included,  but  did 
not,  the  land  in  controversy,  Sterne  brought  a  chancery  suit,  stating 
that  owing  to  suchjnistake  he  might  be  embarrassed  in  the  prosecution 
in  a  law  court  of  this  action  of  ejectment,  and  he  sought  to  have  said 
conveyance  corrected  so  as  to  give  the  true  boundary  of  the  land.  On 
the  trial  of  this  action  of  assumpsit.  Parks  gave  evidence,  as  a  basis  for 
recovery  for  the  timber,  of  an  alleged  contract  between  him  and  tlie 
defendants. ^^     *     *     * 

But  though  there  was  no  contract  to  justify  a  recovery  by  Parks, 
we  must  inquire  whether  a  recovery,  in  an  action  of  assumpsit,  could 
be  had  on  the  ground  that  the  defendants  cut  and  converted  to  their 
own  use  wrongfully  by  trespass  the  timber  of  Parks,  belonging  to 
Parks,  if  even  it  did  belong  to  him.  Parks  showed  no  title  paper  save 
the  deed  to  him  from  Bennett.  He  traced  no  title  from  an  original 
or  common  source.  There  is  no  doubt  that  an  owner  of  land  whose 
timber  is  wrongfully  taken  from  it  and  sold  or  converted  from  it  by 
trespass  may  waive  the  tort  and  recover  the  value  of  the  timber  upon 
the  common  counts.  He  may  recover  on  a  quantum  valebat,  if  not 
sold,  and  for  money  had  and  received,  if  sold.  The  timber  having  been 
converted  into  personalty  by  severance,  its  true  owner  may  recover  its 

«i  Portions  of  the  opinion  have  been  omitted, 
sa  The  court  found  that  there  was  no  such  contract, 
Thuks.Quasi  Cont. — 39 


610  WAIVER   OF  TORT  (Ch.  6 

value  in  assumpsit.  Maloney  v.  Barr,  27  W.  Va.  381.  The  plaintiff 
himself,  by  introducing  the  record  of  the  chancery  suit,  showed  abun- 
dantly that  the  defendants  claimed  a  right  to  take  the  timber  under  an 
old  title  dating  back  to  1797.  The  plaintiff  himself  showed  that  defend- 
ants were  in  actual  possession  taking  the  timber  under  that  claim. 
Parks  claimed  under  a  different,  hostile  title.  Thus,  it  is  a  contest  be- 
tween two  hostile  titles.  Now,  where  the  title  in  the  plaintiff  is  plain, 
and  no  adverse  claim  to  the  land,  he  may  waive  the  tort  of  a  trespasser 
taking  timber  and  sue  in  assumpsit;  yet  surely  the  law  ought  not  to 
convert  assumpsit  into  ejectment  for  title  and  mesne  profits  or  tres- 
pass, and  try  title  to  land. 

Baker  v.  Howell,  6  Serg.  &  R.  (Pa.)  476,  thus  states  the  law :  "An 
action  for  money  had  and  received  will  not  lie  for  the  price  of  sand 
taken  from  a  sand  bar  to  which  both  the  plaintiff  and  defendant  claim 
title,  and  sold  by  the  defendant."  The  reason  is  that  assumpsit  is  for 
money  had  and  received.  The  court  said  it  would  be  strange  to  con- 
vert the  trespasser  into  an  agent  and  sue  him  for  money  he  received 
for  the  same.  The  court  said  according  to  that  theory  assumpsit  could 
be  maintained  in  one  state,  where  the  defendant  may  be  found,  and, 
if  title  could  be  tried,  the  judgment  would  be  conclusive  in  an  action 
of  ejectment  for  land  situated  in  another  state  and  thus  settle  title 
to  land  in  that  state.  The  court  said :  "It  is  not  in  the  power  of  a 
party  to  change  a  local  into  a  transitory  action,  and  try  title  to  land 
in  another  county  ex  directo,  where  the  right  to  the  land  is  the  very 
foundation  of  the  plaintiff's  action.  Brown  v.  Caldwell,  10  Serg.  & 
R.  (Pa.)  114,  13  Am.  Dec.  660,  was  an  action  of  replevin  for  slate  taken 
from  land.  The  action  was  disallowed.  The  court  said  that  action 
'is  to  try  title  to  personal  property,  and  replevin  will  not  lie  for  land.' 
Title  to  land  cannot  be  decided  in  an  action  merely  personal  or  transi- 
tory, no  matter  whether  replevin,  trover,  or  assumpsit."  The  right  to 
the  slate  depended  on  title. 

We  find  in  King  v.  Mason,  42  111.  223,  89  Am.  Dec.  426,  the  hold- 
ing: "Title  to  real  estate  cannot  be  tried  in  action  of  assumpsit."  In 
a  note  to  that  case  in  89  Am.  Dec.  429,  we  find  the  proposition  that 
a  disseisee,  "until  he  has  regained  seisin  and  possession  by  judgment 
or  entry,  has  no  such  interest  in  the  land  as  will  give  him  an  interest 
in  the  trees  which  have  been  severed  therefrom  and  sold  during  the 
continuance  of  the  disseisin ;  and,  of  course,  he  has  no  such  interest 
in  the  money  for  which  they  were  sold  as  will  enable  him  to  maintain 
assumpsit  for  money  had  and  received.  Bigelow  v.  Jones,  10  Pick. 
(Mass.)  161.     See  Baker  v.  Howell,  6  Serg.  &  R.  (Pa.)  476." 

Miller  v.  Miller,  7  Pick.  (Mass.)  135,  19  Am.  Dec.  264,  holds  that 
an  action  of  assumpsit  for  trees  taken  from  land  and  sold  will  lie,  pro- 
vided that  no  question  is  made  in  regard  to  the  title  of  the  land.  "In 
suits  for  timber  cut  and  removed,  as  in  this  case,  the  true  rule,  so  far 
as  the  title  to  the  land  is  concerned,  is  this :   The  plaintiff  out  of  pos- 


Ch.  6)  WAIVER  OF  TORT  611 

session  cannot  sue  for  the  property  severed  from  the  freehold,  when 
the  defendant  is  in  possession  of  the  premises  from  which  the  prop- 
erty was  severed — holding  them  adversely,  in  good  faith,  under  claim 
and  color  of  title.  In  other  words:  The  personal  action  cannot  be 
made  the  means  of  litigating  and  determining  the  title  to  the  real  prop- 
erty as  between  conflicting  claimants."  Halleck  v.  Mixer,  16  Cal.  574. 
The  same  principle  will  be  found  in  4  Cyc.  321. 

In  Lewis  v.  Robinson,  10  Watts  (Pa.)  338,  a  party  brought  assump- 
sit to  recover  money  for  land  claimed  by  him,  but  sold  by  the  defend- 
ant. The  title  of  the  parties  to  the  land  was  in  contest.  It  was  held 
that  assumpsit  would  not  lie,  "although  the  plaintiff  may  have  had  a 
good  title  to  it."  "If  the  occupancy  of  a  trespasser,  who  severs  trees 
or  stone  from  the  land  of  another  and  converts  the  property  taken  to 
his  own  use,  is  such  as  to  create  an  adverse  possession,  assumpsit  does 
not  lie  for  the  value  of  such  property,  for  it  is  a  settled  principle  that 
title  to  land  cannot  be  tried  ex  directo  in  transitory  actions."  Downs 
V.  Finnegan,  58  Minn.  113,  59  N.  W.  981,  48  Am.  St.  Rep.  488. 

North  Haverhill  v.  Metcalf,  63  N.  H.  427,  clearly  sustains  this  hold- 
ing. Mather  v.  Trinity  Church,  3  Serg.  &  R.  (Pa.)  509,  8  Am.  Dec. 
663,  in  full  opinion  and  note  so  holds.  For  this  reason,  as  the  right 
to  those  trees  depended  absolutely  on  title,  this  action  cannot  be  main- 
tained. The  plaintiff  must  sue  in  ejectment  for  title  and  mesne  profits, 
or  trespass,  if  he  has  title.  Note  in  89  Am.  Dec.  429,  430.  There- 
fore, instructions  Nos.  2,  7,  and  8  for  the  plaintiff  were  erroneous  be- 
cause they  submitted  the  question  of  title  to  the  land  to  the  jury,  be- 
cause the  title  could  not  be  at  all  tried  in  the  action.     *     *     * 

Our  conclusion  is  to  set  aside  and  reverse  tlie  verdict  and  judgment, 
and  remand  the  case  for  a  new  trial. 


KIRKMAN  V.  PHILIPS'  HEIRS. 

(Supreme  Court  of  Tennessee,  1872.     7  Helsk.  222.) 

From  the  Chancery  Court,  November  Term,  1870.  Charles  G. 
Smith,  Ch. 

Nicholson,  C.  J.  Elizabeth  Kirkman,  as  executrix,  on  the  18th 
of  June,  1870,  filed  her  attachment  bill  against  the  heirs  and  devisees 
of  Thomas  Philips,  citizens  of  Ohio,  to  recover  the  value  of  certain 
machinery,  iron,  etc.,  alleged  to  have  been  tortiously  taken  in  1863  or 
1864  by  one  Gibson,  by  him  conveyed  to  Cincinnati,  Ohio,  and  there 
delivered  to  one  Moore,  and  by  Moore  sold  to  Thomas  Philips  and  his 
son,  George  Philips. 

The  property  so  taken  and  converted  by  Gibson,  Moore,  and  Philips, 
is  alleged  to  have  been  worth  twelve  or  fifteen  thousand  dollars.    Phil- 


612  WAIVER  OF  TORT  (Ch.  6 

ips  has  died  testate,  and  his  devisees  are  made  defendants.  Lands  in 
Stewart  county  belonging  to  the  devisees  of  Philips  have  been  attached, 
and  the  bill  prays  that  they  may  be  sold,  and  the  proceeds  applied  in 
satisfaction  of  the  debt  due  the  complainant  for  the  machinery,  iron, 
etc.,  so  converted  by  Philips. 

The  bill  was  dismissed  by  the  Chancellor  upon  demurrer,  the  cause 
of  demurrer  being  that  the  recovery  sought  by  the  bill  being  for  a  tort, 
the  same  was  barred  by  the  statute  of  limitation  of  three  years. 

The  allegations  of  the  bill  make  a  case  of  tort  in  the  taking  of  the 
machinery  and  iron,  and  a  conversion  by  Moore  and  Philips,  but  they 
show  clearly  that  complainant  is  seeking  to  recover  the  value  of  the 
property,  and  not  the  property  itself,  or  damages  for  the  tort  or  con- 
version. The  value  so  sought  to  be  recovered  is  claimed  to  be  a  debt 
due  from  Philips  originally,  and  now  from  the  devisees  of  Philips, 
who  is  charged  with  the  last  conversion.  The  bill  is  therefore  main- 
tainable, the  tort  being,  by  force  of  the  language  of  the  bill  waived,  and 
the  value  of  the  property  claimed  as  a  debt:  Alsbrook  v.  Hathaway, 
3  Sneed,  454;  Campbell  v.  Reeves,  3  Head,  228;  Bennett  v.  Ken- 
nerly.  Id.  675.  Although  tliere  are  many  authorities  in  other  States 
holding  that  it  is  only  after  property  has  been  converted  into  money 
that  the  tort  can  be  waived,  and  an  action  for  the  money  maintained, 
yet  in  our  own  State  the  doctrine  is  fully  settled,  that  in  a  case  of 
conversion  the  complainant  has  an  election  to  insist  either  upon  dam- 
ages for  the  conversion,  or  to  waive  these  and  sue  for  the  value  of 
the  property.  If  the  original  owner  of  the  property  elect  to  sue  for 
the  property,  or  for  damages  for  tlie  conversion,  the  action  will  be 
barred  by  the  statute  of  three  years.  Code  1858,  §  2773.  But  if  the 
party  elects  to  sue  for  the  value  of  the  property,  the  action  will  be 
barred  in  six  years.     Code,  §  2775. 

It  is  true,  as  argued,  that  a  wrongdoer  may  obtain  a  title  to  the 
property  by  three  years  adverse  possession,  and  yet  be  liable  for  three 
years  after  his  title  is  perfected  to  pay  the  original  owner  the  value 
thereof.  This  is  a  necessary  consequence  of  the  right  which  the  orig- 
inal owner  has  to  elect  whether  he  will  sue  for  property  or  its  value. 
During  six  years  his  right  to  sue  for  the  value  is  as  perfect  as  his 
right  to  sue  for  the  property  within  three  years.  This  right  is  not 
interfered  with  by  the  provisions  of  the  Code  abolishing  the  distinc- 
tions in  the  forms  of  actions.  The  statute  of  limitations  applicable 
to  the  cause  depends  upon  the  nature  and  character  of  the  action,  and 
not  upon  its  form.  In  the  case  before  us,  the  complainant  has  elected 
to  waive  the  tort  and  to  sue  for  the  value  of  the  property  converted, 
and  in  so  doing  he  is  entitled  to  the  benefit  of  the  six  years  statute. 
It  does  not  appear  on  the  face  of  the  bill  that  six  years  have  elapsed 
from  the  time  of  the  purchase  of  the  property  by  Philips  until  the  fil- 
ing of  the  bill. 


Ch.  6)  WAIVER   OF  TORT  613 

The  demurrer  was  therefore  erroneously  sustained. 

The  decree  sustaining  the  demurrer  and  dismissing  the  bill  is  re- 
versed with  costs,  and  the  cause  remanded  for  answer  and  further 
proceedings.^^ 

33  Contra:  Birmingham  y.  Chesapeake  &  O.  Ry.  Co.  (1900)  98  Va.  548,  37  S. 
E.  17. 

Where,  however,  the  converter  sells  the  chattel  after  the  right  to  sue  in  tort 
is  barred,  no  cause  of  action  for  money  had  and  received  accrues  as  a  result  of 
such  sale.     Currier  v.  Studley  (1893)  159  Mass.  17,  33  N.  E.  709. 

Res  Adjxjdicata  and  Election  of  Remedies. — Because  of  the  principle 
that  no  one  shall  be  tvnce  vexed  for  the  same  cause,  a  judgment  on  the  merits 
in  one  form  of  action  (whether  in  favor  of  plaintiff  or  defendant)  bars  all 
other  suits  for  the  same  cause  of  action  against  the  same  defendant.  Hitchin 
V.  Campbell  (1771)  2  Wm.  Bl.  827.  See  also  Roberts  v.  Moss  (1907)  127  Ky. 
657,  106  S.  W.  297,  17  L.  R.  A.  (N.  S.)  280. 

In  some  states  merely  beginning  suit  in  one  form  of  action  is  held  to  be  a 
binding  election  and  precludes  a  suit  in  the  other  form  of  action,  Thompson 
V.  Howard  (1875)  31  Mich.  309.  Other  courts,  relying  on  principles  of  estoppel, 
do  not  consider  it  an  election  unless  the  defendant  would  be  prejudiced  by  the 
plaintiff's  change  to  another  form  of  action.  Gibbs  v.  Jones  (1868)  46  111.  319. 
See  also  Bolton  Mines  Co.  v.  Stokes  (1895)  82  Md.  50,  33  Atl.  491,  31  L.  R,  A. 
789.  But  the  doctrine  of  election  does  not  apply  in  a  case  where  plaintiff 
attempts  to  pursue  a  remedy  to  which  he  is  not  entitled,  viz.,  suing  in  assump- 
sit where  the  converter  has  not  sold  the  goods  in  a  state  which  denies  the 
right  to  bring  assumpsit  in  such  a  case.  Whipple  v.  Stephens  (1904)  25  R.  I. 
563,  57  Atl.  375. 

Where  there  are  joint  or  successive  converters  an  additional  problem  arises. 
In  Terry  v.  Munger  (1890)  121  N.  Y.  161,  24  N.  E.  272,  8  L.  R.  A.  216,  18  Am. 
St.  Rep.  803,  it  was  held  that  bringing  an  action  of  assumpsit  against  one  con- 
verter was  a  ratification  of  his  tort  and  thus  an  admission  by  plaintiff  that  the 
other  converter  came  rightfully  by  the  goods.  This  view  is  criticized  in  Huff- 
man V.  Hughlett  &  Pyatt  (1883)  79  Tenn.  (11  Lea)  549,  where  the  court  pointed 
out  that  the  action  in  a.ssumpsit  against  the  first  converter  "is  not  strictly 
a  waiver  of  the  tort,  for  the  tort  is  the  very  foundation  of  the  action,"  but 
merely  "a  waiver  of  'the  damages  for  the  conversion'  and  a  suing  for  the  value 
of  the  property." 

The  authorities  on  these  matters  are  discussed  in  an  article  in  26  Harvard 
Law  Review,  707. 

For  a  discussion  of  waiver  of  tort,  In  general,  see  the  excellent  article  In 
19  Yale  Law  Journal,  221. 


INDEX 


ACCOUNT, 

Obligation  to,  11  et  seq. 

ASSIGNMENT, 

Of  cause  of  action  in  quasi  contract,  38. 

ATTACHMENT, 

Duress  by  fraudulent,  539. 

Issuance  of,  in  action  of  quasi  contract,  40. 

BENEFIT, 

Conferred  by  mistake,  see  Mistake. 

Conferred  under  compulsion,  see  Compulsion. 

To  defendant,  how  determined,  where  services  rendered  at  request,  331, 

380,  408  note. 
Received  by  plaintiff,  deduction  or  restoration  of,  22 ;    see,  also.  Contract 

Partially  Performed;   Mistake;    Waiver  of  Tort. 

BENEFITS  VOLUNTARILY  CONFERRED  "WITHOUT  CONTRACT, 

With  intention  to  claim;  compensation,  445  et  seq. 
Debt  of  defendant,  payment  of,  445,  446. 
Fraud  of  third  party  inducing  delivery  of  goods  to  defendant  who 

innocently  consumed  them,  450. 
Funeral  expenses,  liability  for,  472  et  seq. 

Estate  of  deceased,  472. 

Husband  of  deceased,  474,  475. 
Notice  to  husband,  475. 
Officious  intermeddling,  475  note. 

Liability  of  estate  of  deceased  wife  to  husband,  477. 
Necessaries;  liability  for,  27,  461  et  seq. 

Infant,  32  note. 

Infant's  parent,  466  note. 

Lunatic,  27,  461  note. 

Pauper,  liability  of  town,  467. 

Person  contracting  to  furnish  support,  470. 

Wife,  liability  of  husband,  465. 
Negotiorum  gestio,  460  note. 

Obligation  of  another  to  defendant,  performance  of,  447,  450. 
Officious  intermeddling,  447,  460  note,  475  note. 
Preservation  of  life,  461. 
Preservation  of  property,  453  et  seq 
Salvage,  455  note. 

Statutory  obligation  of  defendant,  performance  of,  478,  480. 
Tenant  in  common,  repairs  by,  482. 
Without  expectation  of  compensation,  428  et  seq. 
Benefit  incidentally  conferred,  441,  443. 
Im'provements  by  supposed  owner  of  property,  444  note. 
Party  wall,  rebuilding  of,  443. 
Services  donated,  24,  428  et  seq. 

By  member  of  family,  24,  432. 

By  supposed  slave,  436  note. 

By  supposed  wife,  439. 

In  expectation  of  legacy,  436. 

In  expectation  of  marriage,  437. 

Induced  by  fraud  of  defendant,  432  note,  435  nota. 
Support  donated,  429. 

Thues.Quasi  Cont.  (615) 


616  INDEX 

COMPROMISE, 

Distinguished  from  mistake,  66,  216. 
Based  upon  mistalve  of  fact,  73. 

COMPULSION,  BENEFITS  CONFERRED  UNDER, 

Discliarge  of  defendant's  obligation,  484  et  seq. 
Contribution,  between  co-sureties,  498. 
Between  joint  debtors,  500. 
Between  statutory  co-obligors,  502  note. 
Between  tort-feasors,  502  et  seq. 
Innocent  trespass,  504. 
Negligence,  506,  509. 

Principals  jointly  liable  for  agent's  tort,  503. 
Willful  tort,  502. 
General  average,  492. 

Indemnity  between  principal  and  agent,  for  agent's  innocent  tres- 
pass, 513. 
Of  principal  for  agent's  tort,  504  note. 
Indemnity  of  surety  by  principal,  496. 

By  undisclosed  principal  of  principal,  497. 
Payment,  by  carrier  to  consignee  of  goods  converted  by  defendant, 
491. 
By  town  for  construction  of  highway  which  defendant  contracted 

to  build,  489. 
To  discharge  lien  of  defendant's  taxes  upon  plaintiff's  land,  486. 
To  relieve  plaintiff's  goods  from  sale  under  distress  for  defend- 
ant's rent,  484. 
Duress,  516  et  seq. 

Business,  duress  of,  523. 
Carrier,  unlawful  charge  by,  531. 
Goods,  duress  of,  516  et  seq. 
Inofprisonment,  duress  of,  566. 

Threats  of  imprisonment,  568  note. 
Money  actually  due,  534  note. 
Mortgage  of  realty  by  deed  absolute,  545  note. 
Protest,  necessity  of,  531,  532  note. 
Public  officer,  unlawful  fee  by,  527,  529. 
Good  faith  as  a  defense,  528  note. 
Under  unconstitutional  statute,  529. 
Public  water  supply,  unlawful  charge  for,  523. 
Real  property,  duress  of,  540,  545  note. 

Retention  of  benefit  by  defendant  not  unconscionable,  534  note. 
Stock  of  corporation,  unlawful  charge  as  condition  of  transfer,  522 

note. 
Termination  of  duress,  payment  made  after,  528  note,  533  note. 
University,  unlawful  charge  as  condition  of  admission,  525. 
Voluntary  payment,  533. 
Illegality  coupled  with  compulsion,  554  et  seq. 
Agent,  payment  to  blackmailing,  569. 
Arrest  for  crime,  paym'ent  to  escape,  562. 

Extorted  by  blackmail,  566,  569. 
Bankrupt,  payment  to  obtain  discharge  of,  556. 
Blackmail,  566,  569. 

Composition  agreement,  secret  payment  to  creditor,  559. 
Compounding  a  felony,  562. 
Duress  of  imprisonment,  566. 

Threats  of  imprisonment,  568  note,  569. 
Usurious  contract,  unenforceable  by  statute,  556. 
Void  by  statute,  554. 
Legal  proceeding,  compulsion  through,  64,  535  et  seq. 
Action,  64.  535. 
Attachment,  foreign,  535. 

Fraudulent,  539. 
Distress  for  illegal  tax,  547. 


INDEX  617 

COMPULSION,  BENEFITS  CONFERRED  UNDER— Continued, 
Foreclosure  of  mortgage,  546. 
Judgment,  equitable  defense  not  available,  17. 

Newly  discovered  evidence,  550. 

Subsequently  reversed,  551. 
Materialman's  lien,  unlawful,  540. 

CONTRACT  AND  QUASI  CONTRACT, 

Distinction  between,  23  et  seq. 
CONTRACT  CLAUSE  OF  FEDERAL  CONSTITUTION, 

Applicability  of,  to  a  judgment,  48. 
CONTRACT    PARTIALLY    PERFORMED,    BENEFITS    CONFERRED 
UNDER, 
Illegal  contract,  268  et  seq. ;   see  also  Compulsion. 
Contract  malum  in  se,  285  note,  562. 
Fraud  coupled  with  illegality,  281,  287. 
Illegal  part  of  contract,  not  perfomied  by  plaintiff,  275,  303. 

Performed  by  plaintiff,  278  note,  562. 
Illegality  of  contract  unknown  to  plaintiff  at  outset,  268,  275. 
Marriage  brokage  contract,  282. 
Partnership  for  illegal  purpose,  311  note. 

Principal  and   agent,   money   received   by   agent  from  principal   for 
illegal  purpose  not  performed,  303,  569. 
Money  received  by  agent  from  third  party  on  account  of  princi- 
pal, 306,  307. 
Public  policy  favoring  recovery,  282,  287. 
Statute  enacted  to  protect  plaintiff,  278,  280,  554. 
Usurious  contract,  554,  556. 

Wagering  contract,  action  against  stakeholder,  270,  275  note,  282. 
Action  against  winner,  274. 
Notice  of  repudiation  and  demand,  274  note. 
Impossible  to  complete  performance, 

Further  performance  by  defendant  impossible,  233  et  seq.. 
Freight,  233. 

Purchase  price  of  property,  235. 
Rent,  242. 

Services  of  defendant,  237,  240. 
Apportionable,  240. 
Not  apportionable,  237. 
Further  performance  by  plaintiff,  impossible,  246  et  seq 
Freight,  246. 

Repairs  to  property  accidentally  destroyed,  260  et  seq. 
Rent,  242. 

Services  rendered,  249  et  seq. 
Measure  of  recovery,  258. 
Plaintiff  aware  of  inability  to  complete   performance,   256 

note. 
Recoupment  of  defendant's  damages,  256. 
Stipulation  in  contract  against  recovery,  249. 
Repudiation  or  substantial  breach. 
By  defendant,  12, '352  et  seq. 

Breach   by  defendant   entitling   plaintiff   to  rescind,   extent   of, 

354  note. 
Contract  providing  for  rescission,  352. 
Measure  of  recovery,  371  et  seq. 
Money  paid  by  plaintiff,  371. 

Services  by  plaintiff,  contract  rate  as  evidence,  373  et  seq. 
Benefit  to  defendant,  how  determined,  3S0. 
Full  performance  by  plaintiff,  382. 
Mutual  agreement  for  rescission,  352. 
Property,  payment  to  plaintiff  to  be  in,  384. 
Eestoration  or  deduction  of  benefit  received  by  plaintiff,  356  et 
seq. 


618  INDEX 

CONTRACT    PARTIALLY    PERFORMED,    BENETITS    CONFERRED 
UNDER — Continued, 

Consideration  apportionable,  365  note. 

Insurance,  366. 

Restoration  or  apportionment  not  possible,  360,  363. 

Use  and  occupation,  370. 
Seal,  contract  under,  366. 
By  plaintiff,  386  et  seq. 

Building  contract,  392  et  seq. 

Good  faith  attempt  to  perform,  393  note,  395  note,  396. 

Measure  of  damages,  399  note. 

Possession  taken  by  defendant,  392  et  seq. 

Substantial  performance,  392  et  seq. 

Willful  breach  by  plaintiff,  399. 
Chattel,  sale  of,  by  plaintiff,  386,  388. 

Good  faith  attempt  to  perform,  387  note. 
Purchase  of  land  by  plaintiff,  action  for  installnfents  paid,  402. 
Services,  contract  for,  404  et  seq. 

Discharge  of  plaintiff  for  cause,  404  et  seq. 

Installments  of  pay  already  accrued,  408. 

Recoupment  of  defendant's  damages,  408  note,  413,  426. 

Willful  abandonment  by  plaintiff,  413  et  seq. 
Statute  of  frauds,  contract  unenforceable  because  of. 
Defendant  repudiates,  312  et  seq. 

Accrual  of  cause  of  action,  time  of,  339. 

Contract  for  purchase  of  land  by  defendant,  use  and  occupation, 
316. 

For  purchase  or  lease  of  land  by  plaintiff,  *312,  315,  321. 

Not  to  be  completed  within  one  year,  318,  319. 

To  devise  land  to  plaintiff,  315. 

To  hold  in  trust  laud  conveyed  to  defendant,  339. 
Improvements,  by  lessee,  338  note. 

By  purchaser,  335. 
Measure  of  recovery,  320  note,  324  et  seq. 

Conti'act  rate  as  evidence,  320  note. 

Limited  to  plaintiff's  loss,  324. 

To  defendant's  benefit,  328,  331. 

Defendant's  benefit,  how  determined,  331. 
Payment  by  plaintiff,  by  services,  315,  318. 

In  money  or  goods,  312,  319,  321. 

Return  of  goods  received  by  defendant,  321. 
Use  and  occupation  by  plaintiff,  deduction  for,  312. 
Plaintiff  repudiates,  341  et  seq. 

Contract  for  purchase  of  land  by  plaintiff,  341. 

Not  to  be  completed  within  one  year,  345,  346. 

Void  by  statute,  350. 

CONTRIBUTION, 

See  Compulsion. 

COURT  OF  CLAIMS, 

Jurisdiction  of,  over  quasi  contracts,  44  note. 

CUSTOMARY  OBLIGATION,  1  et  seq. 

DEBT, 

Payment  of,  by  volunteer,  445,  446. 

DEJ  FACTO  OFFICER, 

Recovery  of  fees  from,  14. 

DISCHARGE  OF  DEFENDANT'S  OBLIGATION, 

See  Benefits  Voluntarily  Conferred;    Compulsion. 
DURESS, 

See  Compulsion. 


INDEX  619 

FAILURE  OF  CONSIDERATION, 

See  Contract  Partially  Performed ;    Mistake. 

FORGERY, 

See  Mistake  (of  fact). 

FRAUD, 

Attachment  obtained  by,  duress  of,  539. 
Coupled  with  illegality,  281,  287. 
Coupled  with  mistake,  60,  221. 
Gift  induced  by,  432  note. 
Gratuitous  services  induced  by,  435  note. 
See,  also.  Waiver  of  Tort. 

FREIGHT, 

See  Contract  Partially  Performed. 
The  mother  of  wages,  232,  248  note. 

FUNERAL  EXPENSES, 

See  Benefits  Voluntarily  Conferred. 

GENERAL  AVERAGE,  492. 

ILLEGALITY, 

See  Compulsion ;    Contract  Partially  Performed. 

IMPLIED  CONTRACT, 

Meaning  of  term,  in  statutes,  37  et  seq. 

IMPOSSIBILITY, 

See  Contract  Partially  Performed. 

IMPROVEMENTS, 

By  lessee  under  parol  lease,  338  note. 

By  purchaser  under  parol  contract,  335.  , 

By  supposed  owner  of  property,  444  note. 

INDEAfNITY, 

See  Compulsion. 

INFANT, 

Liability  of, 

For  money  misappropriated,  23. 

For  necessaries,  32  note. 
Liability  of  parent  for  infant's  necessaries,  466  note. 
Liability  to  parent  for  services  of,  by  one  enticing,  583  note. 

JOINDER  OF  CAUSES  OF  ACTION, 

As  applied  to  quasi  contracts,  39  note. 

JUDGMENT, 

Action  on,  9. 

Is  it  a  "contract"  under  statutes  regulating  procedure,  37  et  setj. 

Is  it  within  contract  clause  of  federal  Constitution,  48. 

Nature  of,  40  note,  43  note. 

Payment  of,  under  corai)ulsion,  see  Compulsion. 

LUNATIC, 

Liability  of,  for  necessaries,  27. 

MISTAKE,  BENEFITS  CONFERRED  BY, 

Mistake  of  fact,  51  et  seq. 

Accrual  of  cause  of  action,  time  of,  117,  118  note. 

Bank  note,  validity  of,  157. 

Bond,  validity  of,  155,  158. 

Change  of  position  by  defendant,  06  et  seq.,  209  note. 

Payment  by  agent  to  principal,  96,  98. 
Collateral  fact,  75  et  seq. 
Compensation  for  services,  119. 


620  INDEX 

MISTAKE,  BENEFITS  CONFERRED  BY— Continued, 
Compromise,  distinguislied,  66. 

Based  on  m^utual  mistake,  73. 
Credit  allowed,  53. 
Debt,  overpayment  of,  51. 
Deed,  overpayment  pursuant  to,  53  note. 
Existence  of  contract  between  the  parties,  119  et  seq. 

Funds  of  drawer  to  meet  check,  191. 

Subject-matter  of  a  contract,  152  et  seq. 
Forgery,  bill  of  lading,  payment  of  attached  draft,  194. 

Raised  bill  or  check,  payment  of,  1S6  note. 
Purchase  of,  170  note. 

Signature  of  drawee  of  bill  or  check,  payment  by  drawee,  179,  181. 
Defendant  a  volunteer,  189  note. 
Discount  by  drawee,  186. 
Negligence  of  defendant,  187. 

Signature  of  maker  of  note,  payment  by  maker,  185  note. 

Signature  of  indorser,  payment  by  drawee,  189. 
Notice  of  forgery,  diligence  in  giving,  191  note. 
Fraud  coupled  with  mistake,  60. 
Identity  of  subject-matter  of  contract,  122. 
Insolvent  estate,  payment  of  debt  in  full,  87. 
Insurance,  validity  of,  126,  127. 

Interest,  recovery  of,  on  payment  by  mistake,  119  note. 
Investigation  of  facts,  payment  after,  72. 
Measure,  capacity  of,  54,  73. 
Mutual,  necessity  that  mistake  be,  60,  138. 
Nature  of  subject-matter  of  a  contract,  166  et  seq. 
Negligence,  of  plaintiff,  89  et  seq. 

Of  defendant,  187. 
Negotiable  paper,  special  rules  as  to,  179  et  seq. 
Notice  and  demand.  111  et  seq. 
Overdrawn  account,  payment  by  drawee,  191. 
Patent,  validity  of,  163. 

Payment  stopped  on  check,  payment  by  drawee,  193  note. 
Principal  and  agent,  authority  of  agent  to  borrow  money,  132  et  seq. 

To  execute  negotiable  paper,  133,  135. 

See,  also,  this  title.  Change  of  position. 
Purchase  for  value,  105,  108,  179,  181,  185  note. 
Raised  bill,  validity  of,  170,  186  note. 

Restoration  of  property  received  by  plaintiff,  necessity  of,  151,  178. 
Retention  of  benefit  by  defendant  not  unconscionable,  82,  84. 
Title  to  property,  141  et  seq.,  218. 

Real  property, 

Conveyance  by  deed,  141. 
Parol  conveyance,  144. 
Contract  to  convey,  145. 

Personal  property,  148. 
Unilateral,  60. 
Validity  of,  bank  note,  157. 

Bill  of  lading  attached  to  draft,  194. 

Bond,  155,  158. 

Contract  between  the  parties,  119  et  seq. 

Lease,  160. 

Patent,  163. 

Raised  bill,  170  note,  186  note. 

Signatures  to  negotiable  paper,  see  this  title,  Forgery. 
Value  of  article  sold.  75,  172,  176. 
Voluntary  payment  distinguished,  64,  65. 
Mistake  of  law,  11,  13,  198  et  seq. 
By  officer  of  the  court,  222. 
By  public  official,  payment  of  public  funds,  224. 
Compromise  distinguished,  216. 


INDEX  621 

MISTAKE,  BENEFITS  COXFERRED  BY— Continued, 
CJonstruction  of  a  deed,  220  note. 
Foreign  law,  228. 

Fraud  coupled  with  mistake  of  law,  221. 
Reversal  of  former  rule  of  law,  213. 
Rule  in  courts  of  equity,  220  note. 
Title  of  property,  218 ;    see,  also,  141  et  seq. 
Validity  of  bond,  158. 

NECESSARIES, 

See  Benefits  Voluntarily  Conferred. 
NEGATIVE  ENRICHMENT,  577. 
NEGOTIORUM  GESTIO,  460  note. 
NOTICE, 

Of  forgery  of  indorsement,  diligence  in  giving,  191  note. 

Payment  by  mistake,  notice  before  action,  111  et  seq. 

Tenant  in  common,  repairs  by,  482. 

To  husband  by  one  paying  funeral  expenses  of  wife,  475. 

Wagering  contract,  notice  before  action,  270,  274  note. 

OBLIGATION, 

Customary,  1  et  seq. 
Official,  3. 

Record,  created  by  a,  9. 
Statutory,  4  et  seq.,  44. 
To  account,  11  et  seq. 

OFFICIAL  OBLIGATION,   3. 

OFFICIOUS  INTERMEDDLING,  447,  460  note,  475  note. 

PRINCIPAL  AND  AGENT, 

Deduction  of  commissions  by  agent,  22. 

Indemnity  between,  see  Compulsion. 

Payment  by  principal  to  blackmailing  agent,  569. 

See,  also.  Contract  Partially  Perfornfed;   Mistake  (of  fact). 

PRINCIPAL  AND  SURETY, 

See  Compulsion. 
PROCEDURE,  .    ' 

Statutes  regulating,  as  applied  to  quasi  contracts,  37  et  seq. 

PURCHASE  FOR  VALUE, 

Defense  of,  105,  108,  179,  181,  185  note,  59L 

QUASI  CONTRACT  AND  CONTRACT, 
Distinction  between,  23  et  seq. 

QUASI  CONTRACT  AND  TORT, 

Distinction  between,  573,  576  note. 

RECOGNIZANCE,  10  note. 

RECORD, 

Obligation  created  by  a,  9,  10  note. 

RETENTION  OF  BENEFIT, 

By  defendant  not  unconscionable,  22,  82,  84,  534  note,  586. 

RESTORATION  OF  BENEFIT  RECEIVED  BY  PLAINTIFF, 

See  Contract  Partially  Performed ;    Mistake ;    Waiver  of  Tort. 

SALVAGE,  455  note. 

SET-OFF, 

Of  cause  of  action  In  quasi  contract,  37. 

STATUTE  OF  FRAUDS, 

See  Contract  Partially  Performed. 


622  INDEX 

STATUTE  OP  LIMITATIONS, 

As  applied  to  quasi  contracts,  33  et  seq. 

Time  of  accrual  of  cause  of  action,  benefit  conferred  by  mistake,  117,  118 
note. 
Contract  unenforceable  because  of  statute  of  frauds,  339. 
Waiver  of  tort,  what  clause  of  statute  applies,  611. 

STATUTORY  OBLIGATION,  4  et  seq.,  44. 

STOCKHOLDERS'  STATUTORY  LIABILITY,  44. 

SURVIVAL  OF  CAUSE  OF  ACTION, 
In  quasi  contract,  573,  576  note. 

TORT  AND  QUASI  CONTRACT, 

Distinction  between,  573,  576  note. 

UNJUST  ENRICHMENT, 

General  principles  of,  as  laid  down  by  Lord  Mansfield,  17. 
USE  AND  OCCUPATION, 

Liability  for,  purchaser  under  parol  contract,  316. 
Trespasser,  577,  608. 

Recoupment  for,  312,  370. 

USURIOUS  CONTRACT, 

See  Compulsion. 

VOLUNTARY  PAYMENT,  64,  65,  533,  550. 

VOLUNTEER, 

See  Benefits  Voluntarily  Conferred. 

WAGERING  CONTRACT, 

See  Contract  Partially  Performed. 

WAIVER  OF  TORT,  14,  15,  23,  573  et  seq. 
Administrator  de  son  tort,  against,  15. 
Apprentice,  enticement  of,  liability  to  master,  582. 
Benefit  to  defendant,  necessity  of,  584,  585. 
Bona  fide  purchaser,  591. 
Constructive  trust  of  m'oney,  593. 
Conversion,  of  goods,  573,  585  et  seq. 

Credit,  fraudulent  purchase  on,  action  before  expiration  of,  603,  605. 
Death  of  converter,  liability  of  estate,  573,  577. 
De  facto  officer,  recovery  of  fees  from,  14. 
Infant,  liability  of,  for  money  misappropriated,  23. 

For  services  of  enticed,  liability  to  parent,  583  note. 
Money,  conversion  of,  589,  591. 

Bona  fide  purchaser  from  converter,  591. 

Mala  fide  purchaser  from  converter,  589. 
Negative  enrichment,  577. 
Prisoner  unlawfully  detained,  action  by,  584. 
Restoration  of  property  received  by  plaintiff.  601. 
Retention  of  benefit  by  defendant  not  unconscionable,  586. 
Reward,  liability  for,  received  by  wrongful  claimant,  594  note. 
Sale  by  converter,  necessity  of,  595,  598. 
Services  of  apprentice  enticed  by  defendant,  liability  to  master,  582. 

Of  infant  enticed  by  defendant,  liability  to  parent,  583  note. 

Of  prisoner  unlawfully  detained,  584. 
Statute  of  limitation,  what  clause  applies,  611. 
Survival  of  cause  of  action.  573,  576. 

Title  to  real  estate,  action  involving,  609.  , 

Use  and  occupation  against  trespasser,  577,  608. 
Use  of  property  by  converter,  600. 


VasX  3PUBL1SHINQ  CO.,  PBINTERS,   ST.  PAUL,  HUiS, 


LOS  ANcirVF^^^^^A 


LOS  ANGELES 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


AA    000  847  856    2 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

Los  Angeles 

This  book  is  DUE  on  the  last  date  stamped  below. 


MAY  18  19TS 


Form  L9-Sories4939 


